Terms and Conditions

Licence, Maintenance, Services & Support

1.0 AGREEMENT

1.1 MiClub, and similar expressions, refers to MiEnterprise Pty Ltd ACN 096 746 815 trading as MiClub Services. Client, and similar expressions, refer to you, our customer or proposed customer.

1.2 These terms and conditions apply if MiClub accepts any order from the Client. These terms and conditions prevail even if they are inconsistent with anything in any order form or similar document. Any inconsistent terms or conditions will not be binding on MiClub unless specifically agreed in writing by MiClub.

2.0 ORDERS

2.1 All orders must be placed by the Client directly in writing with MiClub or through MiClub’s website or app (if available) unless agreed otherwise.

2.2 All orders are subject to acceptance by MiClub in writing or by performance.

2.3 In consideration of payment by the Client of the Fees, MiClub agrees to provide the goods and services as set out in the Order subject to these terms and conditions.

3.0 FEES

3.1 The Client shall pay to MiClub the Fees as set out in the Order, provided that it has received a valid tax invoice from MiClub.

3.2 MiClub may increase any Fee, including fees for Hosting Services, Support and Maintenance annually by giving 14 days notice to the Client. If the Client does not agree to the increased Fee the Client may terminate the agreement in accordance with these terms and conditions.

3.3 All Fees specified are exclusive GST and other government taxes, which shall be paid by the Client in addition to the Fees.

3.4 In addition to the Fees, the Client must reimburse MiClub for any travel and accommodation expenses incurred by MiClub in relation to an Order.

3.5 If any amount owed by the Client to MiClub is not paid within 14 days of the due date MiClub may suspend the provision of the Services. The suspension shall continue until such time as the Client makes the full payment outstanding amount to MiClub. Any period of suspension of the Services will not affect the amounts due and payable under this Agreement, and any Services foregone during the period of suspension will be forfeited.

4.0 LICENCE

4.1 For so long as the Client is paying to MiClub the Fees, MiClub grants to the Client a non-exclusive, non-transferrable licence to the Licensed Software.

4.2 The Licensed Software may only be used:

(a) In accordance with the normal operating procedures notified by MiClub;

(b) By the Client and the Client’s members, guests, employees, agents or contractors;

4.3 MiClub warrants that as at the time of supply, the Licensed Software will perform substantially in accordance with the Performance Standard.

4.4 If the Client, within 10 days of supply, reports to MiClub a defect in the Licensed Software and MiClub confirms that defect, MiClub shall repair the defect at no cost to the Client.

4.5 Clause 4.5 does not apply where the defect is caused or significantly aggravated by the Client or a third party, including any change in the Client’s network (hardware or software), user modification or any other matter beyond MiClub’s reasonable control.

5.0 SCORECARDS

5.1 All Scorecards used for MiScore Card Scanning must be purchased from MiClub and under no circumstances shall any alternative card can be substituted.

5.2 The Client authorises MiClub at any time to verify, by electronic means or otherwise, the volumes of Scorecards being used by the Client.

5.3 Costs associated with freight of scorecards and other consumables will be payable by the customer at cost + 5%.

6.0 CLIENT’S OBLIGATIONS

6.1 The Client shall provide all reasonable assistance to MiClub to enable MiClub to provide the Services, including access to the Client’s premises and computer systems as necessary.

6.2 The Client must:

(a) pay the Fees and all other monies owing to MiClub;

(b) use reasonable endeavours to prevent or stop anyone from making unauthorised use of the MiClub Materials, or from doing anything that would be a breach of its obligations under these terms and conditions;

(c) if there is evidence of a breach of these terms and conditions, allow MiClub to enter the Client’s premises investigate; and

(d) indemnify MiClub, its employees and agents to a maximum of $100,000 against all liability for loss or damage (including indirect or consequential loss and loss of profits) or liability that it or anyone else may suffer as a result of:

(i) the Client’s breach of these terms and conditions;

(ii) the Client’s use of the MiClub Materials, or its performance, or any user modifications;

(iii) Any misuse of the MiClub Materials;

(iv) Any use or misuse of the MiClub Materials by anyone using your account.

(e) Provide all operating systems (including updates), network/internet connections or other software such as anti-virus software required to use any of MiClub’s products or services unless agreed otherwise. MiClub does not accept any responsibility for any operating systems (including updates), network/internet connections or other software such as anti-virus software used by the Client when accessing or using any of MiClub’s products or services

6.3 The Client must also:

(a) appoint administrators who must:

(i) be knowledgeable about the Client’s operations,

(ii) be knowledgeable about computers generally and the Client’s computer system in particular;

(iii) be familiar with and competent in the use of the Licensed Software;

(iv) be reasonably contactable and available; and

(v) be able and authorised to follow MiClub’s instructions regarding Support and Maintenance issues.

(b) keep MiClub informed of full contact details for representatives to serve as administrators for the purpose of dealing with MiClub;

(d) ensure that only administrators contact MiClub regarding Support and Maintenance issues.

(e) provide MiClub and its employees and contracts with full and safe access to the Client’s system and premises at all reasonable times.

6.4 The Client must not, without the express consent of MiClub in writing:

(a) lend, rent, lease, sub-license, time or capacity share the Licensed Software to or with anyone else;

(b) except as allowed herein or by law, alter, modify, de-compile, disassemble, reverse engineer or change the Licensed Software, or integrate it with or into any other software, or create a derivative work from the Licensed Software by any means; or

(c) remove or obscure any markings, branding or documentation associated with the Licensed Software or the medium it is stored on, that indicate MiClub’s ownership of it.

6.5 The Client is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services not owned or operated by or on behalf of MiClub, that allow the Client to use the Licensed Software, and for all expenses relating thereto (plus any applicable taxes).

7.0 HOSTING SERVICES

7.1 Subject to an Order and payment of any applicable Fees, MiClub will provide the Client with Hosting Services as follows:

(a) Hosting Services are provided on an “as is, as available” basis. MiClub gives no warranty, express or implied, for the Hosting Services provided;

(b) MiClub is not responsible for the Client’s data, residing on MiClub’s equipment or systems.

(c) MiClub will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, MiClub will restore from the last known good archive. MiClub will not be liable for incomplete, out of date, corrupt of otherwise deficient Client data recovered from our backups.

(d) Unless agreed otherwise, the Client is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access the Hosting Services. MiClub makes no representations, warranties or assurances that the Client’s equipment will be compatible with MiClub’s systems.

(e) MiClub must perform scheduled maintenance to its own servers from time to time. MiClub will attempt to perform all scheduled maintenance at times which will affect the fewest clients. If scheduled maintenance requires the Hosting Services to be offline for more than 30 minutes MiClub will notify Clients by email at least 48 hours before commencement of the maintenance.

(f) MiClub may need to perform unscheduled maintenance from time to time. In these cases MiClub will send an email alert to the Client if any such unscheduled maintenance requires the Client’s service to be off-line for more than five (5) minutes; or affects the Client’s site.

8.0 SUPPORT AND MAINTENANCE

8.1 MiClub agrees to provide Support and Maintenance for the Licensed Software in accordance with the Order and these terms and conditions.

8.2 Support is available under the following schedule:

(a) Product Support for the MiClub Golf System is available 7 Days Per Week AWST (Australian Western Standard Time) 04:00 to 18:00.

(b) Product Support for the MiClub OneGolf System is available Monday to Friday AWST (Australian Western Standard Time) 06:00 to 17:00. Support outside these hours may incur a fee which will be quoted prior to any services provided.

(c) Product Support for the MiClub MiMembership/Xclub System is available Monday to Friday AWST (Australian Western Standard Time) 06:00 to 17:00. Support outside these hours may incur a fee which will be quoted prior to any services provided.

(d) Product Support for the MiClub Website, enews and app products is available Monday to Friday AWST (Australian Western Standard Time) 08:00 to 17:00.

(e) Critical and Outage Support (The system is not operational) is 24 Hours Per Day, 7 Days Per week, 365 Days Per Year.

8.3 MiClub shall address issues raised with the Customer Support Centre without unnecessary delay, taking into account the severity of the issue, the time required to deal with it, and the workload of MiClub’s Customer Support Centre staff.

8.4 Support and Maintenance will be undertaken exclusively from MiClub’s premises unless MiClub agrees otherwise.

8.5 Where MiClub, or anyone acting on its behalf, attends the Client’s premises the Client must provide them with safe and convenient access and conditions.

8.6 MiClub may:

(a) change the specifications or functionality of future versions of the Licensed Software without notice;

(b) cease to offer Support and Maintenance for the Client’s version of the Licensed Software by giving the Client 6 months’ notice, or without notice if the Licensed Software is being used with an operating system that has ceased to be supported by its supplier; and

(c) assign its interest in the Support and Maintenance part of this contract which will take effect on giving notice to the Client.

8.7 MiClub will perform scheduled maintenance to MiClub’s equipment from time to time as deemed necessary by MiClub and will provide 48 hours notice of such maintenance work.

8.8 Unscheduled maintenance may need to be performed from time to time. In these cases MiClub will send an email alert to the Client if any such unscheduled maintenance requires the Client’s service to be off-line for more than five (5) minutes; or affects the Client’s site.

9.0 PROFESSIONAL SERVICES

9.1 Subject to an Order and payment of any applicable Fees, MiClub will provide the Client with professional services in a professional or workmanlike manner (as the case may be) with the standards of diligence and care normally taken by duly qualified persons in the performance of comparable work and in accordance with generally accepted practices appropriate to the activities undertaken.

9.2 The Client shall reimburse MiClub for all expenses reasonably and properly incurred by MiClub in performing professional services, including travel expenses, accommodation and subsistence expenses.

9.3 MiClub and the Client may agree in writing that addition professional services are required at additional cost to the Client. If this occurs the Order will be deemed to be amended to include the agreed additional professional services and the Fees will be adjusted accordingly.

10.0 HARDWARE

10.1 Subject to an Order and payment of any applicable Fees, MiClub will provide the Client with Hardware on the following basis:

(a) Title to, and property in, the Hardware passes to Client upon full payment to MiClub.

(b) MiClub reserves the following rights in relation to the Hardware until all amounts owed by the Client to MiClub are fully paid:

(i) ownership of the Hardware;

(ii) to enter Client’s premises without liability for trespass or any resulting damage and retake possession of the Hardware; and

(iii) to keep or resell any Hardware repossessed pursuant to (ii) above.

(d) Costs associated with freight of hardware and other consumables will be payable by the customer at cost + 5%.

(e) MiClub will use reasonable endeavours to complete delivery of the Hardware. However, delivery dates or periods quoted are estimates only and MiClub accepts no liability whatsoever for any loss or damage suffered by the Client as a consequence of any delay or failure to deliver the Hardware irrespective of the cause.

(f) Unless the Customer gives written notice within 7 days of receipt of the Hardware the delivery of the Hardware will be deemed to be in compliance with and in satisfaction of the Order and the Client waives any claim whatsoever against MiClub in respect of the Hardware.

(g) For Hardware which comprises a MiScore scanner MiClub warrants for a period of 3 years that scanner will:

(i) be free from defects due to faulty design, materials and workmanship;

(ii) be fit for its intended purpose communicated by the Client to MiClub at the time of the Order.

*All other Hardware is provided only with the warranty provided by the manufacturer of the particular piece of Hardware.

11.0 MICLUB’S WARRANTIES

11.1 MiClub warrants that it is able to lawfully grant the licence to the Licensed Software and perform the Services under these terms and conditions.

11.2 MiClub does not warrant that the Hosting Services will be uninterrupted or fee from error.

11.3 MiClub warrants that the Client’s use or reproduction of the MiClub Materials will not:

(a) infringe any person’s rights (including IP Rights and Moral Rights);

(b) constitute a misuse of any person’s confidential information; or

(c) result in MiClub (or any of its Related Entities) breaching any obligations that it owes (or any of them owe) to any person.

11.4 MiClub warrants that MiClub shall maintain compliance with the PCI DSS for all applicable services provided.

12.0 LIMITATIONS AND EXCEPTIONS

12.1 MiClub is not responsible for, and is under no obligation to provide any services in relation to, any loss or damage caused or contributed to by one or more of the following:

(a) user modifications (even if made with MiClub’s approval) and their consequences;

(b) any Third Party Products;

(d) installation or use of the Licensed Software otherwise than in accordance with MiClub’s instructions;

(e) data loss or corruption;

(f) damage by virus, Trojan horse or other malicious code;

(g) Administrator or user error; or

(h) any defect in the Licensed Software, which is rectified in a later version of the Licensed Software, if the Client has chosen not to install that later version.

13.0 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

13.1 Ownership of all IP Rights associated with the MiClub Materials vests and remains vested in MiClub, including anything created by MiClub providing the Services.

13.2 MiClub and the Client acknowledge that the Confidential Information is given and received in strict confidence.

13.3 MiClub and the Client agree to:

(a) establish and maintain effective security measures to safeguard all Confidential Information from unauthorised use, access, copying or disclosure and ensure that each employee to whom Confidential Information has been disclosed, keeps that information confidential and complies with such security measures at all times;

(b) immediately notify the other party of any suspected or actual unauthorised access, use, copying or disclosure of Confidential Information, and

(c) provide such assistance as is reasonably requested by the other in relation to any proceedings that the other may take as a result of such suspected or actual breach of this agreement.

13.4 MiClub and the Client agree not to disclose any Confidential Information to any person whatsoever without the consent in writing of the other party other than as necessary to provide the Services.

13.5 The provisions of clause 11 do not apply in circumstances where a party discloses any part of the Confidential Information to comply with any applicable law or legally binding order of any court or governmental agency. The parties must only disclose the minimum required to comply with the applicable law or order.

13.6 The parties’ obligations under this clause:

(a) will survive the termination or expiration of this agreement; and

(b) will continue until the Confidential Information disclosed to it, falls into the public domain other than by the party’s breach of this agreement.

14.0 LIMITATION OF LIABILITY

14.1 As far as the law permits, and other than as set out specifically herein, MiClub and any person purporting to act with the authority of MiClub:

(a) gives no warranty or undertaking;

(b) makes no representations or promises;

in favour of the Client regarding the MiClub Materials including the Licensed Software, their characteristics, performance or suitability for the Client’s purposes, and all implied warranties, undertakings, representations, terms, conditions and promises are excluded.

14.2 Where the Australian Consumer Law or any other law implies into this Agreement any condition or warranty that cannot be limited or excluded, then it is included, but MiClub’s liability for breach of such a condition or warranty is limited, at MiClub’s option, to one or more of the following:

(a) if the breach relates to goods – their replacement or re-supply of the same or equivalent goods, or their repair, or payment to the Client of the cost of replacing the goods with the same or equivalent ones; and

(b) if the breach relates to services – re-supplying them, or payment of the cost of having them supplied again.

14.3 MiClub will not be liable for any special, indirect or consequential damages, loss of profit, goodwill, revenue or loss of anticipated saving or loss, or corruption of data arising as a result of a breach of these terms and conditions or as a result of a breach of duty of care or negligence arising at law.

14.4 To the maximum extent permitted by law, MiClub’s liability to the Client is limited to the value of the Order.

14.5 The Client acknowledges that MiClub is not responsible for, and can give no warranty or guarantee in relation to:

(a) any statement or representation made by any other person and the Client acknowledges that it has not relied on any such statements or representations;

(b) the consequences of any user modifications, and MiClub is not obliged to Support and Maintain them; or

14.6 MiClub does not promise that the Licensed Software will operate continuously or be free of errors.

15.0 TERMINATION

15.1 Either party may terminate this agreement by giving one month’s written notice to the other party.

15.2 This Agreement automatically terminates if a party:

(a) fails to remedy a breach of this Agreement after being given 14 days’ written notice to remedy that breach; or

(b) is in liquidation or provisional liquidation or under administration;

(c) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved, in each case, other than for the purpose of a solvent reconstruction, amalgamation or reorganisation; or

(d) becomes insolvent or is otherwise unable to pay its debts as they fall due.

15.3 Termination of this Agreement shall be without prejudice to any rights or obligations which may have arisen.

15.4 Upon termination of this Agreement, the Client must immediately:

(a) cease using the MiClub Material;

(b) uninstall any MiClub Material;

(d) return all MiClub Materials.

16.0 NOTICES

16.1 Any notice or other communication required under this Agreement:

(a) must be addressed to the last notified address given by that party;

(b) will be regarded as being given by the sender and received by the addressee:

(i) if by delivery in person, when delivered to the addressee;

(ii) if by normal post, three (3) business days from and including the date of postage; or

(iii) if by e-mail, when received by the addressee.

17.0 PRIVACY

MiClub may collect personal information for the purpose of providing the services under this agreement. All personal information collected will be subject to our Privacy Policy, which forms a part of these terms and conditions, contains information about how to can access and correct personal information, and how to contact us about concerns in relation to privacy. The Client acknowledges that they will comply with the Privacy Policy and the Privacy Act 1998 at all times.

18.0 SEVERABILITY

The invalidity or enforceability of any one or more term and condition will not invalidate, or render unenforceable, the remaining terms and conditions. Any illegal or invalid provision is severable and all other provisions will remain in full force and effect.

19.0 PROPER LAW/JURISDICTION

This agreement is governed by the laws of the State of Western Australia and the parties hereby submit to the jurisdiction of the Courts of the State of Western Australia.

20.0 ENTIRE AGREEMENT

This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.

21.0 ASSIGNMENT

21.1 MiClub may assign its interests under this agreement. The assignment will take effect on giving notice to the Client.

21.1 The Client may not assign its rights under this agreement without the consent of MiClub, which consent shall not unreasonably be withheld.

22.0 WAIVER

22.1 A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising upon breach of this Agreement, does not result in a waiver of that right, power, authority, discretion or remedy.

22.2 A party is not entitled to rely on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this Agreement as constituting a waiver of that right, power, authority, discretion or remedy.

22.3 A party may not rely on any conduct or any other party as a defence to exercise of a right, power, authority, discretion or remedy of that other party.

23.0 DEFINITIONS AND INTERPRETATION

23.1 Unless the context otherwise requires, the following words have the following meanings:

Australian Consumer Law has the meaning given by the Competition and Consumer Act 2010 (Cth) and any other relevant provisions.

Confidential Information means all information pertaining to this agreement and includes all the ideas upon which the agreement is based, including, without prejudice to the generality of the foregoing, any services, materials and workbook provided by the Client or MiClub in relation to the provision of the Services. It does not include any information which either party can prove was:

(a) in the public domain otherwise than as a result of the breach of this Agreement;

(b) received from a third party; or

CPI means the Australian CPI for All Groups, Weighted Average of Eight Capital Cities as published by the Australian Bureau of Statistics.

Defect means an error in the Licensed Software or any part of the Software (including data written by it) such that it fails to function in accordance with the Performance Standard, for a reason attributable to MiClub.

Fees means the fees specified in the Order or incurred under these terms and conditions

Hardware means computer and related technology hardware including but not limited to servers, computers and hard drives.

Hosting Services means the provision of computer program and software services as specified in the Order.

IP Rights means

(a) any patent, trade marks, copyright, registered design or other design right, electronic or circuit layout right and any corresponding property or right under the laws of any jurisdiction throughout the world;

(b) any right under the laws of Australia, or of any other jurisdiction throughout the world, to apply for the grant of registration of a patent, trade mark, copyright, design, electronic or circuit layout right or any corresponding property or right; and

(c) any rights throughout the world in respect of an invention, discovery, trade secret, know-how, concept, idea, information, data, algorithm or formula.

Moral Rights means any of the rights described in the Copyright Act 1968 (Cth).

Order means the request from the Client to MiClub for the provision of goods and services subject to these terms and conditions.

Performance Standard means the standard to which the goods and services provided by MiClub should perform in accordance with the descriptions in its user documentation operational documentation and technical specifications, if used properly.

Privacy Policy means the privacy policy of MiClub as amended from time to time.

MiClub Materials means any goods, including intangible goods, hardware, software programs including the Licensed Software provided by MiClub to the Client from time to time.

Scorecards means scorecards used with the MiScore card scanning system operated by MiClub.

Licensed Software means the computer program(s) provided by MiClub pursuant to an order including any upgrades, patches or modifications provided by MiClub from time to time, in whatever format and any forms, templates, training manuals, material and programs, user manuals, operator manuals, technical manuals, file structure and database documentation, published from time to time by MiClub from time to time.

Support and Maintenance means the Support and Maintenance of the Licensed Software by MiClub, consisting solely of:

(a) on-line chat Support and Maintenance

(b) telephone Support and Maintenance;

(d) Software defect correction; and

(e) maintenance upgrades of the Licensed Software released by MiClub in its absolute discretion.

Third Party Products means software and hardware used by the Client provided by an entity other than MiClub.

Third Party Providers means providers of Third Party Products.

23.2 Unless expressed to the contrary:

(a) words importing:

(i) the singular include the plural and vice versa;

(ii) any gender include the other genders;

(b) if a word or phrase is defined cognate words and phrases have corresponding definitions;

(i) a person includes a firm, unincorporated association, corporation and a government or statutory body or authority;

(ii) a person includes its legal personal representatives, successors and assigns;

(iii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(iv) a right includes a benefit, remedy, discretion, authority or power; and

(v) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation.