Terms and Conditions

These Terms and Conditions were last updated August 19, 2022, and supersede any previous Terms and Conditions, or Software License Agreements previously agreed, unless otherwise agreed by the parties in writing.

By using the Datascore technologies (including Datascore Scoreboards, FiXi ScoreSheet and Player Login Technology), you are deemed to have accepted these Terms and Conditions.

LICENSOR

The Licensor is Datascore Scoreboards Pty Ltd (A.C.N. 136 174 260) care of Curtain & Co. Services Pty Ltd, Level 5, 369 Royal Parade, Parkville, Victoria, 3052

RECITALS

The Licensor holds the exclusive licence to exploit and offer sub-licenses of the Software.
The Licensor has agreed to grant to the Licensee a non-exclusive non-transferable licence to use the Software on the terms and conditions contained herein.
Where applicable, the Licensor has agreed to rent the Hardware to the Licensee on the terms and conditions contained herein.

THE PARTIES AGREE AS FOLLOWS:

Clause 1. DEFINITIONS

In this Agreement, unless the context otherwise requires or implies, the following expressions have the meaning set opposite each of them:–

Commencement Date	Means the date the system was first used by the Licensee
Confidential Information	Means all modifications and information in relation to the Software, but not limited to the source codes, object code, algorithms, screen displays, file designs, report formats and all manuals and documentation pertaining to the Software
Hardware	Means the hardware used to run the system
Initial Fee	Means the fee for the installation of the Software, such fee being advised by the Licensor to the Licensee
Licence and Rental Fees	Means the fees agreed in the specific customer agreement
Location	Means the location of the Licensee’s premises
Software	Means the scoreboard technology software and associated manuals and documentation pertaining to such software
Term	Means monthly in perpetuity unless terminated in accordance with this Agreement

Clause 2. GRANT OF LICENCE OF SOFTWARE AND RENTAL OF HARDWARE

Grant of Licence of Software
1. The Licensor hereby grants to the Licensee a non-exclusive, non-transferrable right and licence to use the Software at the Licensee’s premises for the Term subject to the terms and conditions of this Agreement.
Manuals and Documentation
1. The Licensor shall provide to the Licensee all relevant manuals and documentation pertaining to the Software to enable the Licensee to use the Software in accordance with this Agreement.
Use of the Software
1. The Licensee agrees not to use the Software for any purpose other than as specified in this Agreement.
Rental of Hardware
1. Where the Licensor has provided Hardware to the Licensee on a rental basis, the following provisions and the provisions of Clause 16 herein shall apply:–
  1. The Licensee must insure (and keep insured) the Hardware at the Licensee’s own cost;
  2. The Licensee must ensure that all maintenance and any necessary repairs are carried out in relation to the Hardware and the Licensee shall bear all costs in association with such maintenance and repair;
  3. The Licensee must not use the Hardware for any purpose other than as specified in this Agreement;
  4. The Licensee must not part with possession of the Hardware (including to any related entity of the Licensee) without the prior written consent of the Licensor; and
  5. The Licensee must not make any modification or alterations to the Hardware in any manner whatsoever.

Clause 3. LICENCE AND RENTAL FEE

Licence and Rental Fees
1. The Licensee shall pay to the Licensor the Licence and Rental Fees by the dates and in the manner agreed at the Commencement Date, or as otherwise agreed in writing.
Licence and Rental Fees Non-Refundable
1. The Licensee acknowledges that any Licence and Rental Fees paid to the Licensor shall be non-refundable even in the event of termination of this Agreement in accordance with Clause 10 herein.

Clause 4. DELIVERY AND INSTALLATION

Delivery of the Hardware and the Software to the Licensee shall take place within seven (7) days of payment by the Licensee to the Licensor of the Initial Fee and the first years Licence and Rental Fees.
The Licensor shall install the Software on computer hardware acquired by the Licensee as part of the Initial Fee and the Licensor shall deliver the Hardware to the Licensee’s nominated site, at which time the Licensor shall arrange for the Software to be tested.
The Licensor shall locate the hardware in a place nominated by the Licensee provided that the Licensee provides the Licensor with reasonable access to the nominated place. The Licensee shall accept any and all responsibility for the location, safety and ongoing inspection and maintenance of any hardware installed on the premises irrespective of which party installed the hardware. This includes but is not limited to the fixing and associated brackets, cables, radar devices, TV’s, LCD or LED screens.
The Software shall be taken to have been properly installed unless the Licensee advises the Licensor in writing within seven (7) days of installation of any defect.

Clause 5. HARDWARE AND SOFTWARE

The Licensee acknowledges and agrees that the Software may not operate properly (or not at all) on other hardware or platforms not specifically provided by the Licensor.
The Licensor shall not accept any responsibility for defects, software failures or performance degradation caused by viruses or other software or components on the hardware that may interfere with the way the Software operates.
The Licensee shall be responsible for ensuring that the Licensee’s computer system is properly maintained and is not changed in a way which may adversely affect the operation of the Software.
The Licensee hereby warrants that it has in place all necessary and sufficient back-up procedures and equipment required to protect the Software and the Licensee further warrants that such back-up copies of the Software shall be kept secure at all times.
The Licensor shall not accept any responsibility for defects or hardware failures outside the manufacturer’s warranty on the supplied hardware. The Licensor may, at its sole discretion, provide to the Licensee direct on-site support and or replacement hardware at the Licensee’s site.

Clause 6. MAINTENANCE, TRAINING AND SUPPORT

As the user of the Hardware and the Software, the Licensee shall bear the sole responsibility for the day to day maintenance of the Hardware and the Software which shall include, where necessary, performing regular updates, implementing other upgrades provided to the Licensee by the Licensor from time to time and generally ensuring that the Hardware and the Software and all associated materials are kept up-to-date.
In order to assist the Licensee to use the Software successfully, the Licensor shall provide to the Licensee umpire and stadium training manuals pertaining to the Software.
The Licensor shall provide the Licensee with support for the Software after installation of the Software by way of email support access. In addition, the Licensor may, at its sole discretion, provide to the Licensee direct on-site support at the Licensee’s site.

Clause 7. WARRANTIES OF THE LICENSOR

The Licensor warrants as follows:–
1. That the Licensor has the right to rent the Hardware and to sub-licence the Software;
2. That the Licensor holds the exclusive licence to exploit and offer sub-licenses of the Software;
3. That the use of the Software and of the Confidential Information by the Licensee will not infringe the rights of any third party; and
4. That the Licensor will continue to support and maintain the Software and will agree to support the Licensee in the operation and overall management of the Software in accordance with the terms of this Agreement.

Clause 8. WARRANTIES AND ACKNOWLEDGEMENTS OF THE LICENSEE

The Licensee warrants as follows:–
1. That it will comply with all reasonable directions issued by the Licensor from time to time regarding the manner of use of the Hardware and the Software and the Intellectual Property;
2. That the Licensee shall only use the Hardware and the Software and the Intellectual Property in accordance with this Agreement;
3. That the Licensee will not use the Hardware, the Software or the Intellectual Property in any manner which in the reasonable opinion of the Licensor does or might cause damage to the Licensor or to the Hardware, to the Software or to the Intellectual Property; and
4. That it will indemnify the Licensor from all costs, expenses, claims, demands, suits, proceedings, causes of action or damages including reasonable legal fees, arising out any breach by the Licensee of this Agreement.
The Licensee acknowledges that the Hardware and the Software shall at all times remain the sole and exclusive property of the Licensor and that nothing in this Agreement shall be deemed to confer upon the Licensee any rights of ownership in the Hardware or the Software.

Clause 9. LIMITATION OF LIABILITY

The parties hereby agree that the Licensor’s liability for breach of any warranty, term or condition of this Agreement shall be limited, at the Licensor’s sole discretion, to repair or replacement of the Hardware or the Software or to the re-supply of services associated with the Software.
The Licensor shall not be responsible for any other loss, damage, claim or expense howsoever caused or suffered (including any liability by virtue of negligence on the part of the Licensor) and further the Licensor shall not in any circumstances be liable for any indirect or consequential losses, loss of profits or business or loss or damage to any property or computer equipment of the Licensee.

Clause 10. TERMINATION

Without prejudice to any other rights at law or in equity, the Licensor shall have the right to suspend or terminate this Agreement by notice in writing to the Licensee upon the following events:–
1. Where the Licensee fails to pay to the Licensor the Initial Fee or the License and Rental Fees by the date given on the invoice; or
2. In the event that the Licensee breaches this Agreement and fails to remedy that breach in accordance with a notice from the Licensor requiring it to do so, by giving written notice to the Licensee.
Either party may terminate this Agreement at any time forthwith upon fourteen (14) days notice given to the other party where an Insolvency Event occurs in relation to the other party. For the purpose of this Clause 10.2, an “Insolvency Event” means the occurrence of any of the following events:–
1. an application is made to a Court for an order or an order is made and not removed within twenty-one (21) days that a party be wound up;
2. an application is made to a Court for an order appointing a liquidator or provisional liquidator to a party, or one of them is appointed and not removed within twenty-one (21) days, whether or not under an order;
3. except to reconstruct or amalgamate while solvent on terms approved by the other party (acting reasonably), a party enters into, or resolves to enter into, a scheme of arrangement, agreement of company arrangement or composition with, or an assignment for the benefit of, all or any class of its creditors, or its proposes a re-organisation, moratorium or other administration involving any of them;
4. a party resolves to wind itself up, or otherwise dissolve itself, or gives notice of an intention to do so (except to reconstruct or amalgamate while solvent on terms approved by the other party (acting reasonably) or is otherwise wound up or dissolved;
5. a party is or states that it is insolvent;
6. as a result of the operation of a section of the Corporations Act 2001, a party is taken to have failed to comply with a statutory demand under that Act for the payment of money;
7. a party is or makes a statement from which it may reasonably be deduced by the other party that it is the subject of an event described in Section 459C(2) of the Corporations Act 2001 or Section 585 of that Act;
8. a party takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation;
9. a party becomes insolvent under administration as defined in the Corporations Act 2001 or action is taken which could result in that event;
10. anything analogous or having a substantial similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
11. a resolution is passed to appoint an administrator or an administrator is appointed to a party;
12. a receiver or receiver and manager is appointed to a party; or
13. a mortgage takes possession of any one of the assets or undertakings of a party.
Either party may terminate this Agreement by giving no less than ninety (90) days notice to the other party that this Agreement shall terminate, failing which this Agreement shall automatically renew.
On termination of this Agreement, the Licensee must immediately cease using the Hardware and the Software and any and all intellectual property pertaining to the Software and further the Licensee must return all such Hardware, Software, confidential information and intellectual property to the Licensor. All costs associated with this activity shall be borne solely by the Licensee.
In the event Hardware has been subsidised by the Licensor and has not been fully paid for by the Licensee, the Licensor must pay any outstanding money owed on the Hardware immediately.

Clause 11. CONFIDENTIAL INFORMATION

Ownership of the Confidential Information
1. The Licensee acknowledges that the Confidential Information is and shall remain the sole exclusive property of the Licensor and its successors or assigns.
Obligation of Confidentiality
1. The Licensee acknowledges that the Software and Confidential Information is to be kept confidential and used solely in the best interest of the parties.
Exception
1. The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is executed):–
  1. is disclosed to the Licensee under this Agreement, but at the time of disclosure is rightly known to the Licensee and not subject to an obligation of confidentiality on the Licensee;
  2. is necessary to disclose to a third party for the purpose of the Licensee obtaining legal advice or accounting or taxation advice;
  3. at the time of disclosure is within the public domain or after disclosure comes into the public domain other than by a breach or breaches of any obligation under this Clause 11.

Clause 12. INTELLECTUAL PROPERTY RIGHTS

The Licensee acknowledges that it shall not acquire any intellectual property rights (including copyright) pertaining to the Software or pertaining to the manuals and documentation associated with the Software and that such intellectual property shall remain the sole exclusive property of the owner of the intellectual property.
The Licensee hereby undertakes to the Licensor that it will not, and that it will not assist any third party to, do anything which may infringe the intellectual property, including attempting to modify, alter or reverse engineer the Software in any way.
The Licensee further undertakes that it shall promptly notify the Licensor if it becomes aware of any action by any third parties that may infringe the Licensor’s rights in relation to the Software or to the intellectual property pertaining to the Software and will give the Licensor any reasonable assistance required in relation to taking action against such third parties at the Licensor’s expense.
Should the Licensee provide the Licensor with ideas, comments or suggestions relating to the software (herein referred to as feedback), all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works) are solely and immediately owned by the Licensor, and can be transferred at the Licensor’s discretion.

Clause 13. DISPUTES

Disputes to be Resolved by Mediation
1. The parties must first attempt to resolve any dispute, question or difference of opinion concerning or arising out of this Agreement by mediation.
Mediation Procedure
1. The mediation procedure is as follows:–
  1. either party may start mediation by serving a mediation notice on the other parties;
  2. the mediation notice must state that a dispute has arisen and identify the substance of the dispute;
  3. The parties must jointly request appointment of a mediator. If the parties fail to agree on the appointment within seven days of service of the mediation notice, either of the parties may apply to the executive director for the time being of the law institute or law society of Victoria, Australia the nominee of the executive director to appoint a mediator;
  4. Once the mediator has accepted the appointment the parties must comply with the mediator’s instructions; and
  5. The parties agree that it will be a term of the engagement of the mediator that they release the mediator from any court proceedings relating to this Agreement or the mediation.
Role and Responsibility of Mediator
1. The parties agree that the mediator’s responsibilities are:–
  1. to assist the parties to reach a resolution of the dispute by agreement;
  2. to act impartially and to ensure that the parties have a clear understanding of each other’s case to enable proposals to be formulated for settlement of the dispute;
  3. not to impose a solution on the parties and any suggestions made by the mediator during the course of the mediation are not binding;
  4. to keep confidential and not to disclose to any person any information or material received from the parties which is designated “confidential” but not including information and material which has not been designated as “confidential” and which the mediator considers that its disclosure is relevant to the settlement of the dispute; and
  5. to allow each of the parties to appoint one or more persons, including legally qualified persons, to represent or assist it in the mediation process.
No Court Proceedings
1. Unless the provisions of this Clause 13 have been duly complied with, no party may bring court proceedings in respect of any matter in dispute which arises in relation to this Agreement.
2. Nothing in this Clause 13 will prejudice the right of a party to seek urgent injunctive or declaratory relief in respect of a dispute arising out of this Agreement.

Clause 14. RELATIONSHIP OF THE PARTIES

Nothing in this Agreement is to be construed as constituting the parties as partners, agents or representatives of each other and no party shall commit or incur any liability on the part of the other party, nor pledge or attempt to pledge its credits in any way whatsoever.

Clause 15. GOODS AND SERVICES TAX

Interpretation
1. Words or expressions used in this Clause 15 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
Consideration is GST Exclusive
1. Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as “GST inclusive”, does not include an amount on account of GST.
Gross Up of Consideration
1. Despite any other provision in this Agreement, if a party (“Supplier”) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as ‘GST inclusive’):–
  1. the consideration payable or to be provided for that supply under this Agreement but for the application of this Clause (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
  2. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
Tax Invoices
1. The Recipient need not make a payment for a taxable supply made under or in connection with this Agreement in respect of a taxable supply until the Supplier has given the Recipient a tax invoice for the supply to which the payment relates.

Clause 16. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

Upon execution of this Agreement, the Licensee acknowledges and agrees that:–
1. the Licensee has granted to the Licensor at the time the Licensee takes possession of the Hardware, a purchase money security interest pursuant to the PPSA in the Hardware which shall have priority over all other security interests in the Hardware;
2. this Agreement constitutes a security agreement for the purposes of the PPSA and creates a security interest in the Hardware supplied by the Licensor to the Licensee as security for the payment of all monies owing by the Licensee to the Licensor and for the performance by the Licensee of all its obligations to the Licensor; and
3. a security interest is taken in all Hardware previously supplied by the Licensor to the Licensee and all Hardware that will be supplied in the future by the Licensor to the Licensee.
The Licensee undertakes to:–
1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Licensor may reasonably require to register financing statements or financing change statements on the Personal Property Securities Register (“the PPSR”) in respect of the Licensee;
2. pay all costs and expenses incurred by the Licensor in connection with the registration of its security interest and any enforcement or attempted enforcement and removal of that interest, or preservation of any right or interest under this Agreement or otherwise conferred upon the Licensor by the PPSA;
3. reimburse the Licensor for any costs and/or expenses incurred or payable by the Licensor in relation to maintaining or releasing any financial statement or any other document in respect of any security interest under this guarantee or under this Agreement.
4. indemnify, and upon demand reimburse, the Licensor for all expenses incurred in registering financing statements or financing change statements on the PPSR or releasing any goods charged thereby;
5. not register or enter into any document which seeks to vary or alter the Licensor’s rights in respect of the security interest without the Licensor’s prior written consent;
6. not sell or grant any other security interest in the Hardware; and
7. immediately advise the Licensor of any material change in its business practices which would result in a change in the way the Hardware is used.
The Licensor and the Licensee agree that sections 96, 125, 131 and 140 of the PPSA do not, to the extent permitted by law, apply to the security agreement created by this Agreement.
The Licensee hereby waives its rights to receive notices under sections 95, 118, 121 (4), 123, 130, 132 (3) (d), 132 (4), 135 and 157 of the PPSA.
The Licensee waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Licensor, the Licensee waives its rights to receive a verification statement in accordance with section 157 of the PPSA.
The Licensee hereby consents to the Licensor recording the details of this Agreement on the PPSR and agrees to do all things necessary and reasonably required by the Licensor to effect such registrations.
The Licensee shall unconditionally ratify any actions taken by the Licensor under this clause.

Clause 17. COSTS AND STAMP DUTY

Each party must bear its own legal and other costs and expenses of and incidental to the preparation, review and execution of this Agreement.

Clause 18. NOTICE

Service of Notices
1. A Party giving notice or notifying under this Agreement must do so in writing:–
  1. personally by service upon a person;
  2. directed to the recipient’s address; and
  3. hand delivered or sent by prepaid post to that address.
Receipt
1. A notice given in accordance with Clause 18.1 is taken to be received:–
  1. if hand delivered, on delivery; or
  2. if sent by prepaid post, three days after the date of posting.

Clause 19. GENERAL

Governing Law and Jurisdiction
1. This Agreement is governed by the law of the State of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
Variation
1. No variation or waiver of, or any consent to any departure by a party from a provision of this Agreement is of any force or effect unless it is confirmed in writing, signed by the parties and then that variation, waiver or consent is effective only to the extent for which it is made or given.
Waiver
1. The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement.
Agreement Endures
1. The provisions of this Agreement shall endure for the benefit of and be binding upon the parties and their respective successors in title, executors, administrators, legal representatives, heirs, successors and permitted assigns.
Severability
1. If any provision of this Agreement is invalid and not enforceable in accordance with its terms, other provisions which are self-sustaining and capable of separate enforcement with regard to the invalid provision, are and continue to be valid and enforceable in accordance with their terms.
Further Assurances
1. Each party must do, sign, execute and deliver and must procure that each of its directors, employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
Counterparts
1. This Agreement may be executed by any number of counterparts and all of these counterparts taken together constitute one and the same instrument.
Entire Agreement
1. This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
No Assignment
1. The Licensee may not assign or transfer its rights or obligations under this Agreement without the prior consent of the Licensor.
No Adverse Construction
1. This Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation.
Time of the Essence
1. Times stated in this Agreement are essential, unless otherwise stated.
Force Majeure
1. Notwithstanding any other provision of this Agreement neither of the parties shall have the right to terminate this Agreement or any of the rights hereby granted or to make any claim or demand against any other party in respect of that other party’s default or non-performance of any of its agreements or obligations under this Agreement if such default or non-performance is a result of an event of force majeure.
2. For the purposes of this Clause 19.12 “event of force majeure” means any event or circumstance or combination of events or circumstances:–
  1. which is beyond the control of the party seeking to rely upon it;
  2. which prevents or delays the party seeking to rely upon if from performing its obligations under this Agreement;
  3. where the occurrence and the effects of the event or circumstance could not have been prevented, overcome or remedied by the exercise by the party seeking to rely upon it of a standard of care and diligence consistent with that of a prudent and competent person under the circumstances (including) the expenditure of reasonable sums of money and the application of technology known to such prudent and competent persons); and
  4. is or includes an earthquake, fire, flood, storm, tempest or other act of God or natural disaster or riot, civil commotion, malicious damage, accident, explosion, hostility, act of government, sabotage, act of public enemy, radioactive contamination, war, revolution or any strike, lock-out or other industrial disturbance.
Interpretation
1. In this Agreement, unless the contrary intention appears:–
  1. reference to the singular includes the plural and vice versa and reference to one gender includes all other genders;
  2. reference to a party to this Agreement includes a reference to that party’s personal representative and successors;
  3. reference to a natural person includes any company, partnership, joint venture, association, corporation or other body corporate
  4. the headings contained in this Agreement are for ease of reference only and shall not be taken into account in the interpretation of this Agreement;
  5. other grammatical forms of defined words or expressions have corresponding meanings;
  6. a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this Agreement and a reference to this Agreement includes any schedules and annexures;
  7. a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
  8. a reference of ‘A$’, ‘$A’, ‘dollar’ or ‘$’ is a reference to Australian currency;
  9. words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies;
  10. a reference to any legislation or statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State legislation, as applicable; and
  11. a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it.