Terms & Conditions US
CATAPULT TEAM SOLUTION
Catapult – Athlete monitoring Agreement
This Athlete Monitoring Agreement (“Agreement”) is entered into as of the date you execute the quotation that was sent to you by Catapult (“Quotation”, and constituting an “Order Schedule”) between the Catapult entity named in the Quotation (“Catapult”), and the Purchaser named in the Quotation (“Purchaser”, “you”, “your”). This Agreement sets forth the terms and conditions that apply to the goods, equipment, software licenses and services you receive from Catapult and its affiliates.
Your initial order for the goods that Catapult provides to you (the “Equipment”) and the Software licenses (and other goods and services) is set forth in the Quotation. Additional orders may be made by separate signed written agreement in a form agreed by the parties (such agreement constituting an “Order Schedule”). By purchasing the Equipment and Software licenses, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use the Equipment and the Software licenses. You may not use the Equipment and the Software licenses for any illegal or unauthorised purpose nor may you, violate any laws in your jurisdiction (including but not limited to copyright laws).
2.1.1. You purchase all Equipment set out in each Order Schedule
2.1.2. Title in, and ownership of, Equipment will remain with Catapult (and will not pass to you) until You have paid the Equipment Fee (see the applicable Order Schedule) in full. Catapult may, at Catapult’s expense, take whatever measures it deems necessary to to make a public record of Catapult’s ownership of the Equipment.
2.1.3. Until title in any Equipment passes to You in accordance with section 2.1.2, You holds those items (“Unpaid Equipment”) as the fiduciary agent and bailee of Catapult and must ensure that the Unpaid Equipment are clearly identifiable as the property of Catapult and are properly stored and protected and remain fully insured.
2.1.4. You may not assign the Software or Data except pursuant to Section 18.1.
3.1. Athlete Licenses: Subject to the terms of this Agreement, Catapult grants you, for the Term, one (1) non-exclusive, non-sublicensable, nontransferable licence to use Catapult’s software for each monitor you have purchased (athlete tracking unit) through an Order Schedule, (the “Software” or the “Hosted Software”). The Software may be used to monitor the performance and capabilities of one (1) unique individual who has provided the consent detailed in 10.5. You may designate a single unique individual as an exclusive user of a monitor (an “Athlete”).
3.2. Analyst User Licenses: During the Term, Catapult grants to you, subject to the terms and conditions of this Agreement, one (1) non-exclusive, non-sublicensable, nontransferable license, to permit one (1) unique individual (an “Analyst User”), to access a copy of the Hosted Software. You may designate a single unique employee of yours as your Analyst User.
4.1. Equipment Fee: All Equipment Fees specified in any Order Schedule are payable prior to the Equipment being delivered to you.
4.2. Subsequent Annual Fees (if any): If the term of any Order Schedule is extended beyond the Initial Term (including in accordance with section 16.1), annual fees (“Annual Fees”) are payable for each Year (or the remaining part thereof) after the Initial Term in accordance with the following:
4.2.1. Catapult may give notice (including by way of invoice) (“Annual Fee Notice”) for the Annual Fees for that Year (or remaining part thereof);
4.2.2. You may terminate any extension of an Order Schedule by providing written notice to Catapult within 30 days of receiving the Annual Fee Notice, and the failure to terminate in such time shall be an acceptance by Purchaser of the Annual Fee Notice (and relevant Annual Fee) and any renewal of the term;
4.2.3. If the extension of the Order Schedule (or remainder thereof) is not terminated in accordance with section 4.2.2 and:
(a) The Annual Fee Notice is given prior to or on the first day of the relevant Year, the relevant Annual Fee is effective from the first day of that Year; or
(b) The Annual Fee Notice is given after the first day of the relevant Year, the relevant Annual Fee is effective from the date of the Annual Fee Notice;
4.2.4. “Year” means each year of an Order Schedule starting on the First Day set out therein.
4.3. Subsequent Annual Fees Payment Terms: All Annual Fees, including Intial Annual Fee and any subsequent Annual Fees are payable, upfront, sum within 30 days of the date of acceptance of the relevant Annual Fee Notice (or prior to the first day of the relevant Year, if later).
4.4. Taxes: “Tax” means any tax or charge levied by any governmental body including but not limited to any value-added, sales, use, or withholding tax assessable by any local, state, provincial, federal, or foreign jurisdiction. Catapult’s fees do not include any Taxes and you are responsible for paying all Taxes associated the goods and services Catapult supplies to you. If Catapult has an obligation to pay or collect Taxes for which you are responsible, Catapult may invoice the amount to you which are payable within 30 days.
4.5. Late Payment: Amounts not received by the due date shall bear interest, without demand, at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law (if lower), from the date such payment was due until the date paid. If any payment owing to Catapult is outstanding 30 or more days, Catapult may, in addition to Catapult’s rights under Section 16.2, restrict your ability to access or use the Equipment and/or Software, and/or suspend any of Catapult’s other obligations to you under this Agreement.
4.6. Currency: All amounts due under this Agreement are payable in the currency specified in the Order Schedule.
5. Equipment and Software
5.1. Delivery: Catapult will deliver Equipment to you at your risk to the place identified in the applicable Order Schedule.
5.2. Your Obligations. You must:
5.2.1. Operate the Equipment and Software only in accordance with the applicable documentation;
5.2.2. While any items of Equipment constitutes Unpaid Equipment, keep those items in good order and repair (reasonable wear and tear excepted) and maintain those items in accordance with the applicable documentation;
5.2.3. During the Term, use the Equipment, Software and Data only to monitor and analyze the athletic performance of the Athletes for your own internal use (“Licensed Purpose”) and without limiting the foregoing, you must not use the Equipment, Software or Data to provide information or services to third-parties, whether for a fee or otherwise.
5.3. Limitations of the Software and Equipment.
5.3.1. Modification of Hosted Software: Purchaser acknowledges and agrees that Catapult may modify the Hosted Software from time to time.
5.3.2. Your Self-Reliance: You acknowledge that you have relied on your own skill, knowledge, experience, and judgment to verify that the Software and Equipment meets your requirements and that you are not relying on any implied warranty of fitness for your needs.
5.3.3. Your Systems: Catapult shall have no liability with regard to the Software if your computer network and communications systems (including software) do not conform to Catapult’s minimum specifications or recommended configurations or if you do not have adequate backup and recovery systems. The minimum specifications are available from Catapult. Catapult has no obligation to provide any computers to the Purchaser.
5.4. No representations or warranties.
5.4.1. Catapult and Catapult’s affiliates and licensors provide the Software, Equipment and other goods and services provided by Catapult and Catapult’s affiliates and licensors, on an as is basis.
5.4.2. Conspicuous Disclaimer of Warranties and Representations: Except as set forth in this Agreement, Catapult DISCLAIMS all representations and warranties, express or implied (by fact or operation of law, statute or otherwise), regarding the Equipment and Software (and other goods and services) including, without limitation, any warranties for fitness for any purpose, quality, merchantability, workmanlike service or otherwise, and any warranties arising out of a course of dealing or performance, trade usage, or trade practice. Except as set forth herein, Catapult makes no warranty or representation concerning the suitability of any Equipment or Software for use with any other item.
5.4.3. No Representation or Warranty For Interaction With Your Computer: Catapult DOES NOT WARRANT OR REPRESENT that the Software is free from errors or that it will interface without any problems with your computer system. Catapult shall NOT BE LIABLE for any damage or loss to any computer or data resulting from the use of the Equipment or the Software. It is your responsibility to back up your computer or otherwise save important data before accessing or installing the Software or Equipment and to continue to back-up your important data at least daily.
5.4.4. No Support Warranties or Representation. Catapult DOES NOT REPRESENT OR WARRANT:
(c) That the Software or any training or support Catapult provides will be uninterrupted, free of errors, or free from unauthorized access or interruption by external parties; or
(d) That Catapult’s commercially reasonable efforts will be adequate to correct any defects in the Software.
5.4.5. Third Party Limitations: Your access to the Hosted Software is subject to the availability to you of an Internet connection. Catapult is not responsible or liable for service interruptions of third-party suppliers.
5.5. Repair/Replacement of Equipment.
5.5.1. Defects and Wear: During the period starting on the date of delivery of any item of Equipment and ending on the day being 6 months from that date, Catapult will repair or replace (at Catapult’s election), at Catapult’s cost, any Equipment that is defective in materials or workmanship or that malfunctions due to ordinary wear and tear under ordinary use in accordance with Catapult’s instructions. Equipment repaired or replaced in accordance with this Section 5.5.1 constitutes “Warranted Equipment”.
(a) You must prepay the shipping and insurance for any item you return to Catapult. The risk of loss or damage of any item shall transfer to Catapult when the item arrives at Catapult. Reasonable shipping costs incurred by you in relation to return of any item are reimbursable to you if that item constitutes Warranted Equipment, in the form of a credit against future fees.
(b) Catapult will ship to you repaired, or replacements of, Warranted Equipment at Catapult’s cost. Repaired, or replacements of, non-Warranted Equipment will be shipped to you at your cost (payable within 30 days of demand by Catapult).
(c) The risk of loss or damage of any item shall transfer to you when the item is delivered to you.
5.5.3. Fees: Catapult may charge you a replacement/repair fee if Catapult determines that an item of Equipment is not Warranted Equipment. Fees shall be based on Catapult’s then standard fee for analyzing the item ($150 minimum as at the date of this Agreement) and the cost of the replacement unit (if applicable), (such costs payable within 30 days of demand by Catapult).
6. Hosted Software Availability
6.1. Hours: Catapult will use commercially reasonable efforts to make any Hosted Software available to you 24 hours a day, seven days a week. Catapult may take the Hosted Software off line (including to perform maintenance as appropriate).
6.1.1 Playertek by Catapult team customers have the ability to work in a non hosted environment if they choose to do so via a Bluetooth upload from the device to an iOS application.
6.2. Catapult’s Responsibilities. Catapult shall:
6.2.1. Use commercially reasonable efforts to provide you with access to the Hosted Software (accessible via the Internet);
6.2.2. Take commercially reasonable steps to ensure that third persons are not able to access confidential information you have stored on Catapult’s computer through the Hosted Software without your prior written consent or as permitted herein.
6.3. Catapult’s Back-up: Catapult will use commercially reasonable efforts to implement back-up and recovery procedures to protect and preserve information you transfer to Catapult or that your use of the Software and Equipment generates (“Data”) while your Data is stored on Catapult’s computers. Catapult’s back-up responsibilities do not diminish your responsibility to implement your own back-up procedures in case of any failure of Catapult’s back-up procedures.
7. Support: Catapult will use commercially reasonable efforts to provide to you the support services provided to similar customers of Catapult.
8. Your Responsibilities
8.1. Active Obligations. You are responsible for:
8.1.1. The use, supervision, management, and control of the Equipment;
8.1.2. Making sure that your computer network and communication systems (including software) are suitably configured, maintained, and operated so as to enable you to access the Hosted Software;
8.1.3. Establishing adequate alternative, backup, and recovery systems to prevent adverse consequences if the Software malfunctions or fails;
8.1.4. Assigning the user names and passwords that Catapult provides for each Analyst User only and ensuring that they are not provided to other persons; and
8.1.5. Preventing unauthorized or inappropriate use of the Equipment and Software, or use of the same outside the scope of this Agreement.
8.2. Modification, Reverse Engineering, and Derivative Works. You shall not, and you shall not permit any agent or third party:
8.2.1. To copy any Software, or documentation (“Materials”) other than as unambiguously permitted in this Agreement;
8.2.2. To decompile, disassemble, or otherwise reverse engineer the Equipment (including without limitation firmware) or Software or determine any source code, algorithms, methods, or techniques (or similar) used or embodied in the Materials;
8.2.3. Access the Materials for the purpose of monitoring its availability, performance, or functionality or for benchmarking, reverse engineering, or other competitive purpose;
8.2.4. Embed the Materials in any other application;
8.2.5. Modify, translate, or otherwise create derivative works based upon the Materials or copy ideas, features, functions, or graphics of the Software for use in another product, service, or function;
8.2.6. Remove or alter any copyright, trademark, or other notices, legends, symbols, or labels appearing in connection with the Materials.
8.3. Certain Excluded Uses. You may not access or use the Software if you compete or plan to compete in the business of athletic performance monitoring. In addition, you must not:
8.3.1. Send or store materials containing software viruses, worms, trojan horses or other harmful computer code, files scripts, agents or programs;
8.3.2. Interfere with or disrupt the integrity or performance of the Software;
8.3.3. Alter or modify disabling mechanisms which may be resident in the Software or mechanisms that control access to use of the Software; or
8.3.4. Gain or attempt to gain unauthorized access to the Hosted Software or its related systems or networks for any reason whatsoever.
9. Ownership Of Materials
Catapult and/or Catapult’s affiliates and licensors own all intellectual property rights in and to the Materials. Any suggestions, ideas, enhancement requests, feedback, recommendations, templates, widgets, libraries, or other software or information you provide to or jointly develop with Catapult that relate to the Materials shall belong solely to Catapult. All rights not expressly granted to you are reserved by Catapult and Catapult’s affiliates and licensors.
10. Use And Disclosure Of Confidential Information
“Confidential Information” means non-public information one party (an “Owner”) discloses to the other party (the “Recipient”), whether orally or in writing, that the Owner designates as confidential or that the Owner discloses in connection with this Agreement if the information reasonably should be understood to be confidential given the nature of the information and the circumstance of disclosure. Your Confidential Information shall include your Data (but excluding De-identified Data). Without limitation, Catapult’s Confidential Information shall include the non-public aspects of the Software. “Confidential Information” also includes the non-public terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that:
10.1.1. Is or becomes generally known to the public without breach of any obligation to the Owner;
10.1.2. Is known to the Recipient in its compiled form at the time of receipt without breach of any obligation to the Owner;
10.1.3. Is received from a third party without breach of any obligation to the Owner; or
10.1.4. That either party independently develops without using the other party’s Confidential Information.
10.2. Protection of Confidential Information. Except as otherwise permitted in this Agreement or in writing by the Owner:
10.2.1. The Recipient shall use at least the same degree of care that the Recipient uses to protect the confidentiality of the Recipient’s own Confidential Information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Owner for any purpose outside the scope of this Agreement; and
10.2.2. The Recipient shall limit access to Confidential Information of the Owner to those of Recipient’s employees, contractors, and agents who need access for purposes consistent with this Agreement.
10.3. Protection of Your Data: Without limiting the foregoing, Catapult shall maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of your Data. Catapult shall not disclose your Data except as the law requires or as you approve in writing, or as expressly set out herein. Catapult will not access your Data except as reasonably required to provide the Hosted Software to you or as this Agreement otherwise permits.
10.4. HIPAA Compliance: Terms in quotes in this Section 10.4 have the meanings specified for those terms in the US Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009, as amended (collectively, “HIPAA”). To the extent that Data stored on Catapult’s computers is “protected health information,” Catapult will comply the provisions of HIPAA that apply to Catapult as your “business associate”. To the extent Catapult has already provided to you, or received from you, “protected health information” that is the subject of a request for “access” under HIPAA, Catapult may refer the person requesting the information to you and need not otherwise provide the requested access.
10.5. Equipment User Consent: You represent that you have obtained the consent of all Equipment Users (or their legal guardians) to the collection, disclosure and use of their personal information (including such information which comprises Data) in accordance with this Agreement (including all consents required by law). Where necessary, you agree to procure that all Equipment Users (or their legal guardians) provide this consent to Catapult, in writing, in any form Catapult reasonably requires.
10.6.1. Purchaser acknowledges and agrees that the Equipment and Software (and other goods and services) are being acquired by Purchaser for the sole purpose of the Licensed Purpose.
10.6.2. You agree that, during and after the Term: (i) the Data may be accessed and used by Catapult at any time for the purpose of performing its obligations under the Agreement and monitoring its rights under the Agreement and the performance of the Equipment and/or Software; (ii) De-identified Data may be created and used by Catapult or permitted third parties for aggregate reporting purposes, research and development, and for use in respect of the development of new products and services, and enhancements to existing products and services; and (iii) Data may be accessed by Catapult or permitted third parties from the date that is 12 months after the date that such Data was created and used by Catapult (and permitted third parties) for aggregate reporting purposes, research and development, and for use in respect of the development of new products and services, and enhancements to existing products and services.
10.6.3. You grant Catapult a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, sub-licensable, assignable, transferable license to use, reproduce, modify, adapt, create derivative works from, distribute and otherwise deal with the: (i) Data for the purposes set out in section 11.6.2(i) and 11.6.2(iii); and (ii) De-identified Data for the purposes set out in section 11.6.2(ii).
10.6.4. You warrant to Catapult that: (i) you have the right to grant Catapult the licenses set out in section 11.6.3; and (ii) you have obtained all necessary consents required in relation to the collection, storage, use (including by permitted third parties), sub-license, assignment and transfer of the Data, including any consents required in accordance with any privacy law that applies to any applicable individual and/or the Athlete.
10.6.5. Data is “De-identified Data” if Catapult has no reasonable basis to believe the Data can be used to identify the performance capabilities of a specific athlete.
10.6.6. Without limitation, you shall not use, and you shall not permit third parties to use, the Data for commercial purposes (including, without limitation, commercialization or monetization of Data).
10.6.7. Except as unambiguously set out in sections 11.6.3, you must not assign your rights in the Data to any other person or grant any other person the right to access or use the Data.
10.6.8. Notwithstanding anything to the contrary in this Agreement, any access to or use of the Data permitted in this Section 11.6 shall not constitute a breach of this Agreement by Catapult.
10.7. Required Disclosure: In the event that Recipient (or its affiliates) is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, governmental or civil investigative demand or similar process) to disclose any of the Confidential Information, it is agreed that Recipient will (to the extent permitted) provide the Owner with prompt notice of such request(s) so that Owner may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Owner grants a waiver hereunder, Recipient (or its affiliates) may furnish that portion (and only that portion) of the Confidential Information which Recipient is legally compelled to disclose and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. The Owner shall be responsible for reimbursing Recipient’s reasonable costs associated with compiling and providing secure access to the disclosed information.
10.8. Return of Confidential Information: Subject to Sections 11.4 and 17.6 or as otherwise expressly set out herein, at the end of the Term, the Recipient shall destroy all physical copies and delete all electronic copies of the Owner’s Confidential Information in the Recipient’s possession, power, or control, including any notes, reports, and other documents that contain or refer to the Owner’s Confidential Information.
10.9. Permitted Matters: Notwithstanding anything to the contrary in this Agreement, any disclosure by the Australian Stock Exchange (ASX) listed affiliate of Catapult made under ASX listing rules shall not constitute a breach of this Agreement.
11. Risk of Injury
You represent that each Athlete will be aware of the risks and hazards connected with exercise, sports, and other physical activity and that each Athlete will acknowledge (by executingh the Equipment User Consent) that use of the Equipment, Software and other goods and services of Catapult and its affiliates and licensors can result in injury to both property and person during physical activity. You covenant to inform each Athlete, and each Athlete will acknowledge (through the Equipment User Consent) that Catapult does not require anyone to use the Equipment and that although the Equipment and Software has been designed to minimize the risk of personal injury and property damage, such risk cannot be eliminated entirely. You assume the risk of any personal injury, death and property damage to any person (including Athletes) that may occur while using the Equipment or Software.
12. Your Indemnification
12.1. You indemnify and hold Catapult and Catapult’s licensors, parent companies, and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liability and expense (including attorney fees and costs) arising out of or in connection with:
12.1.1. A claim alleging or arising out of your misuse of the Software or Equipment or use of the Software or Equipment other than in accordance with Catapult’s written instructions;
12.1.2. A claim alleging physical injury or death;
12.1.3. A claim alleging that access or use of the Data as permitted in this Agreement, infringes the rights of, or has caused harm to, a third party;
12.1.4. A claim arising out of the misuse or release of, or access to, your Data by any person you have authorized to use the Software or Equipment or who gained unauthorized access to your Data through your facilities or with a user name and password or other credentials issued to you;
12.1.5. You, (including your personnel, and Athletes and Analyst Users) doing, permitting or otherwise authorizing anything that results in an infringement of any of Catapult’s (and its affiliates’ and licensors’) intellectual property rights, including intellectual property rights in the Equipment and Software;
12.1.6 A claim alleging that your use of the Software or Equipment, when combined with a technology that Catapult did not provide, infringes the intellectual property rights of a third-party;
12.1.7. A claim arising from your breach of this Agreement or your breach of any of Catapult’s confidentiality or security policies; or
12.1.8. The use of the Equipment or Software by an Equipment User without obtaining a fully executed Equipment User Consent.
13. Catapult’s Indemnification
13.1. Catapult shall indemnify and hold you and your licensors, parent companies, and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liability and expense (including attorney fees and costs) arising out of:
13.1.1. Any claim that the Software or Equipment, as used within the scope of this Agreement, infringes the intellectual property rights of a third-party,
13.1.2. Any physical injury that you have not otherwise assumed and which results directly from the use of the Software or Equipment in accordance with Catapult’s negligent written instructions or written instructions which amount to willful misconduct; and
13.1.3. Breach by Catapult of this Agreement.
13.2. If you believe you are entitled to indemnification, you must:
13.2.1. Notify Catapult in writing of the claim promptly upon learning of the claim;
13.2.2. Provide Catapult with sole control of the defense and all related settlement negotiations; and
13.2.3. Cooperate with Catapult, at Catapult’s expense, in defending or settling the claim.
13.3. In connection with the indemnification set out in Section 13.1.1, Catapult, at Catapult’s sole option, may (a) obtain for you the right to use the Hosted Software in accordance with this Agreement; or (b) use commercially reasonable efforts to make the Hosted Software non-infringing without materially diminishing the Hosted Software’s utility to you. Catapult shall have no liability for any claim of infringement arising out of your misuse of the Hosted Software or for your intentional infringement.
14. Limitation of Liability
14.1. Notwithstanding anything to the contrary contained herein or otherwise, in no event shall the aggregate liability of Catapult’s and its affiliates and licensors under or in connection with this Agreement exceed the amount of Fees paid by you in respect of the purchase of the Equipment and licenses granted to you relating to the twelve (12) month period immediately preceding the event giving rise to the subject claim.
14.2. In no event shall Catapult and/or Catapult’s affiliates and licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential, or other damages of any type or kind (including loss of data, revenue, profits, use, or other economic advantage) arising out of, or in any way connected with, this Agreement, including but not limited to the use or inability to use the Software or Equipment or any interruption, inaccuracy, error, or omission, regardless of cause, even if you have previously advised Catapult of the possibility of such damages.
15. U.S. Government Rights
Use, duplication, reproduction, release, modification, disclosure, or transfer of the Software is restricted in accordance with FAR 12.212, DFARS 227.7202, and this Agreement. For these purposes, the Contractor is Catapult with the contact details set out in the Quotation.
16. Term and Termination
16.1. Term: “Term” means the term of this Agreement starting on the earlier of: the date Quotation is signed; the First Day specified in the IOS; the day that you first come into possession of the Equipment; or the day that you first access the Software. The Term ends on expiration of all Order Schedules or earlier termination of this Agreement. “Initial Term” means the Initial Term of an Order Schedule specified therein starting on the First Day specified therein. Subject to Purchaser’s rights to terminate any Order Schedule in accordance with Section 4.2.2, each Order Schedule shall automatically renew from time to time for additional one (1) year periods starting on the day immediately following the last day of the relevant Initial Term unless either party gives written notice of nonrenewal to the other at least three months before the expiration of the then-current term of that Order Schedule.
16.2. Termination for Cause. Either party may terminate the Agreement by giving written notice to the other party:
16.2.1. 30 days after giving written notice of a material breach of this Agreement by the other party if the breach remains uncured at that time; or
16.2.2. If the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
16.3. Notice of Breach: Notice of any breach of this Agreement shall include language sufficient to permit the recipient to understand the facts constituting the breach and the provisions of this Agreement that are alleged to be breached, shall alert the recipient that the notifying party may terminate the Agreement or exercise other remedies if the breach is not cured by a specific date, and shall inform the recipient of the date (if any) by which the recipient must cure the breach.
16.4. Refunds: Fees paid under this Agreement are not refundable.
16.5. Obligations Upon Termination.
16.5.1. Upon termination or expiration of this Agreement, you shall:
(a) Cease to access any Hosted Software;
(b) Immediately pay Catapult all fees owing (including Equipment Fees and Annual Fees); and
(c) Confirm completion of such actions to Catapult. Upon receipt of the confirmation, Catapult will provide you with a copy of your Data in spreadsheet or database format.
16.5.2. Termination of the Agreement does not terminate the obligations of the parties under this Agreement, and all obligations that by their nature survive the termination of the Agreement shall remain in effect.
16.5.3. On 5 days’ written notice to you, you hereby authorize Catapult to enter any premises (accompanied by any of your nominated personnel) with your permission (not to be unreasonably withheld) where Catapult reasonably believes that unreturned items or Unpaid Equipment may be located and to take possession of those items. You hereby release Catapult from any liability or damage you suffer as a result of Catapult’s reasonable actions in taking or attempting to take possession of any such items.
16.6. Data Hosting: You may purchase Data hosting services (“Hosting Services”) from Catapult within 30 days after expiration or termination of this Agreement (“End Date”) if you are in compliance with all of your obligations under this Agreement. No fee is payable in respect of hosting of Data during the Term. The fee payable for the first year of Hosting Services is $10 per Athlete per year. Thereafter Catapult reserves the right to modify its prices for subsequent years. Fees for Hosting Services are payable annually in advance. The Hosting Services will allow you to view your Data as it existed as of the End Date but not to upload any Data. Catapult may offer to extend the Hosting Services, on the same or with different pricing, by delivering an invoice to you for the period of the extended services. The hosting services shall be so extended upon your payment of the invoice on or before the date specified in the invoice. If you do not purchase or pay for the Hosting Services in accordance with this Section or Catapult’s invoices, Catapult may, without notice, at any time, delete any Data you have uploaded to the Hosted Software.
17.1. Successors and Assigns: This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns to the extent this Agreement permits. All references to a party in this Agreement shall also refer to each person who becomes a permitted successor or assignee of the party’s rights under this Agreement. You may not assign (directly or indirectly) this Agreement or your rights or obligations under this Agreement, or license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available any part of the Software or Data (unless set out herein) to any person or party, without Catapult’s prior written consent. For this purpose, a change in control of you shall constitute an assignment of this Agreement.
17.2. Force Majeure: Each party (for the purposes of this section 17.2 only “first party”) and the first party’s affiliates and licensors shall not be liable for any delay or failure in the performance of obligations (other than an obligation to pay money) that arises out of causes beyond its control, including but not limited to electrical and or energy outages, Internet failures, computer failures, communications failures, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, and severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties.
17.3. No Third‑Party Beneficiaries. Athletes are not intended beneficiaries of this Agreement. Except as this Agreement provides with respect to indemnified persons and in Sections 5.4, 9, 10, 13, 14, 14, 17.1, 17.2, 17.12 and 18.13, nothing in this Agreement:
17.3.1. Confers any right on a person other than the parties and their respective permitted successors and assigns;
17.3.2. Discharges the obligation of any third person to any party; or
17.3.3. Gives any third person a right of subrogation or action against any party.
17.4. Notices. Any notice given under or in connection with this Agreement shall:
17.4.1. If given to Purchaser, be given to any of the contact information (including email address) for Purchaser set out in the Quotation;
17.4.2. If given to Catapult, be given to any of the contact information (including email address) for Catapult set out in the Quotation, with a copy to firstname.lastname@example.org or such other contact information of either party, notified by that party to the other.
17.5. Modifications: This Agreement may not be amended or otherwise modified except pursuant to a later written document, signed by the parties to this Agreement, evidencing the intent to amend or modify this Agreement.
17.6. Dispute Resolution: The parties shall negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of both parties, then each party shall nominate one senior officer as its representative. The representatives shall, after delivery of a written request by either party for a meeting, meet in person and alone (except for one assistant for each party) and attempt in good faith to resolve the dispute. If the representatives cannot resolve the dispute, the representatives shall, within 30 days after the date of delivery of a written request, meet for one (1) day with an impartial mediator to consider dispute resolution alternatives to litigation. If the parties do not agree to an alternative method of dispute resolution within 30 days after the mediation, either party may begin litigation. This Agreement does not preclude a party from seeking prejudgment remedies and emergency relief from a court of competent jurisdiction.
17.7. Attorney Fees: The prevailing party in any suit, action, counterclaim, or arbitration arising out of this Agreement (including without limitation enforcement of any award or judgment obtained with respect to this Agreement and the attorney fees and costs associated with any appeal from any award or judgment) shall be entitled to recover a reasonable allowance for attorney fees, litigation expenses, and the cost of arbitration in addition to court costs. This Section 17.7 shall survive any judgment, and shall not be deemed merged into any judgment.
17.8. Equitable Remedies: Each party agrees that any breach of this Agreement by the other party may cause irreparable damage to the other party and that, in the event of such breach, and in addition to any remedies at law, the other party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to enforce this Agreement, without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
17.9. Governing Law, Jurisdiction, and Venue: This Agreement shall be governed by the law of the State set out in Purchaser’s billing address in the Quotation (or if none, Victorian law in Australia), without regard to its choice or conflicts of law provisions. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software be subject to the non-exclusive jurisdiction of the state and federal courts located in in Victoria, Australia.
17.10. Entire Agreement: This Agreement (including the Quotation and any other Order Schedules) comprises the entire agreement between Catapult and you and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter hereof. No text or information set forth on any purchase order, preprinted form, or document that does not conform to this Agreement shall add to or vary the terms of this Agreement.
17.11. Severability; No Partnership; No Waiver: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Catapult and you as a result of this Agreement or your use of the Software. The failure of Catapult to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Catapult in writing.
17.12. Nonsolicitation of Employees: During the Term and for one (1) year after the end of the Term, you shall not, directly or indirectly on behalf of you or any person or entity, solicit, induce, influence, combine or conspire with, or attempt to solicit, induce, influence, combine or conspire with, any of the officers, employees or contractors of Catapult to terminate their employment or engagement with Catapult or compete against Catapult or any of Catapult’s present or future subsidiaries, parents or affiliates.
17.13. Nondisparagement: During and after the Term, each party agrees that it will not, will procure that its and its affiliates’ personnel do not, and will not permit any third party to, take any action that may directly or indirectly damage the reputation of the other party or the other party’s affiliates or otherwise disparage the other party or the other party’s affiliates or their respective goods and services. Any matter or thing permitted under this Agreement shall not constitute a breach of this Section 17.13.
17.14. Additional Defined Terms: “Data” includes, without limitation, biometric and athlete performance-related and capability-related data. “permitted third parties” means Catapult’s third party partners, sub-licensees, assignees and transferees permitted to access and use Data and De-identified Data solely in accordance with Section 10.6. “products and services” includes, without limitation, physical goods and digital applications.
17.15. Counterparts: The parties may execute this Agreement in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. A signature by facsimile machine or the transmission of a scanned signature shall bind the party so signing with the same effect as the party’s original signature.
LUZERN LOGISTICS TERMS AND CONDITIONS
1.1 This Web Store is hosted and operated by Luzern Technology Solutions Limited, Business & Technology Park, Snugborough Road, Blanchardstown, Dublin 15. Registered in Ireland: No. 361832 (“Luzern”) an authorised reseller of PlayerTek sports products. If you have any questions regarding the Web Store or these terms and conditions, or in the unlikely event that you have any complaints about any products or services purchased by you from this Web Store, you can contact Luzern at:
Luzern Technology Solutions Limited
Blanchardstown Business & Technology Park
Telephone: UK +44 (0) 203 514 5650 IRL +353 (1) 899 9698
Fax: +353 1 633 56 13
2.1 These terms and conditions, together with any other policies or documents referred to in these terms and conditions (including any policies or documents to which a link is provided from these terms and conditions) (together “Terms”) apply to all orders for products and services submitted by you for products and services made available by Luzern for purchase over the Web Store. Please read these Terms carefully.
2.2 Please note that when you purchase any products or services through this Web Store, you are purchasing those products and services from Luzern, and not from Playertek. These Terms form a contract between you and Luzern. Playertek is not a party to these Terms.
2.3 Please note that these Terms do not affect your statutory rights as a consumer.
3. Acceptance of Orders
3.1 You agree that your order is an offer to purchase the products (“Products”)and services (“Services”) listed in your order on these Terms. All orders submitted by you are subject to acceptance by Luzern. Luzern may choose not to accept your order for any reason without liability to you.
3.2 After you submit an order to Luzern, Luzern will send you an order acknowledgement email with your order number and details of the Products and Services you have ordered. Please note that this email is an acknowledgement that Luzern has received your order and is not an acceptance of your order. A confirmation email will then be sent to you when your accepted order has been despatched. Acceptance of your order and the formation of a contract of sale between you and Luzern will not take place unless and until the Products have been despatched to you or, in the case of Services, when Luzern first start to provide the Services to you.
4.1 All prices on this Site are stated in the respective countries currency unless otherwise stated. They do not include any VAT payable on delivery charges and any customs clearance charges.
4.2 Luzern endeavors to ensure that all pricing information on the Web Store is correct. Occasionally, however, an error may occur and Products and Services may be mispriced. If a Product’s or Service’s correct price is lower than the price stated on the Web Store, Luzern will charge the lower amount and send you the Product or provide you with the Service. If a Product’s or Service’s correct price is higher than the price stated on the Web Store, Luzern will contact you and ask you whether you wish to proceed with the order at the correct price or cancel your order. Luzern will not be obliged to supply Products or Services at an incorrect price.
5. Payment Terms
5.1 The total cost of your order will be the purchase price for the Products and/or Services, any delivery charges and any card processing charges.Unless otherwise agreed in writing prior to Luzern’s acceptance of your order.
5.2 Please note that, unless Luzern notifies you otherwise prior to Luzern’s acceptance of your order, Luzern will only accept payment in the currency of the territory in which your delivery address is located.
5.3 If you are using a credit/debit card you confirm that the credit/debit card that is being used is yours. All credit/debit card holders are subject to validation checks and authorisation by the card issuer. If the issuer of your card refuses to authorise payment Luzern will not accept your order and Luzern will not be liable for any delay or non-delivery and Luzern is not obliged to inform you of the reason for the refusal. Luzern is not responsible for your card issuer or bank charging you as a result of Luzern’s processing of your credit/debit card payment in accordance with your order.
5.4 For customers with credit accounts – you will pay the price of the Goods in accordance with the approved credit application form signed by Luzern. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Luzern, Luzern shall be entitled to:
Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as Luzern may think fit (notwithstanding any purported appropriation by the Buyer)
Charge the buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per annum above Allied Irish Bank base rate from time to time, until full payment is made (a part of a month being treated as a full month for the purpose of calculating interest).
Cancel any other contract between the Buyer and Luzern or suspend any further deliveries to the Buyer under any such contract.
Payment on account must be paid in full, strictly 30 days from date of shipment/invoice. Any other variance must be agreed in writing by a company Director.
Special orders may require payment in advance.
All other methods of payment must be cleared funds, before dispatch. Legal ownership, or title, to the goods will not pass from the seller (Luzern) to the buyer until the buyer has paid for the goods. Luzern has the right to enter the buyer’s premises to repossess the goods if required.
The buyer has the obligation to:
Store the goods separately from goods belonging to third parties;
Mark the goods as the seller’s property;
Allow the seller access to the buyer’s premises to verify that the obligations are being complied with. Luzern also reserves title in all goods supplied to the buyer until the buyer has settled all outstanding invoices from Luzern
6.1 Where Luzern elects, or is required by applicable law, to issue or make available an invoice, Luzern reserves the right to issue or make available electronic invoices and you agree to such form of invoicing. If electronic invoicing is used, Luzern will give you the option to print off a copy of your invoice in HTML format with a “print friendly” facility on the page.
7.1 Any Services Luzern provides or makes available to you or which are purchased by you may be subject to additional terms. Any such terms will be brought to your attention before you purchase those Services. Please note that those terms shall apply to the relevant Services in addition to these Terms.
8. Substitute Products/Services
8.1 It is Luzern’s policy to continually update its product and service offerings and so Luzern may therefore revise or discontinue Products and Services from time to time.If, for any reason, Luzern is unable to provide you with the Product or Services you have ordered, Luzern will do its best to offer you a substitute of the same or better quality at the same price. If you are not happy with a replacement product, you can return it in accordance with Luzern’s 14 day returns guarantee. In addition, and where applicable, you may cancel your order in accordance with your rights under the [Consumer Protection (Distance Selling) Regulations 2000]
8.2 Please note that if you elect to return substitute goods in accordance with Luzern’s 14 day returns guarantee or your right to return substitute goods under the [Consumer Protection (Distance Selling) Regulations 2000], Luzern will meet the reasonable costs of returning the substitute goods.
9.1 Please also note that, when ordering from Luzern, you are considered the importer of record and must comply with all laws and regulations of the country in which you are receiving the Products or Services.
10. Delivery and risk
10.1 Subject to Clause 10.3 below, orders will be sent to the delivery address that you have given on your order form. Luzern Solutions cannot be held responsible if that delivery address is incorrect. Please note that, unfortunately due to logistics issues we may not be able to deliver to your address
10.2 Luzern Solutions currently only delivers Products and Services to the countries listed in the checkout. Please also note that Luzern is unable to deliver Products or Services to any country other than that listed unless otherwise stated therefore your delivery address and billing address must be among this list.
10.3 While Luzern Solutions will try to meet any dispatch estimates that it gives you, please note that they are just that: they are not guarantees and should not be treated as such. Accordingly, you agree that products may not necessarily reach you in the desired time.
10.4 Once a Product has been received by you, all risk of damage to, or loss of, the product shall pass to you.
11. Cancellation and returns
11.1 Should you wish to cancel or return any Products or cancel any Services, you may do so in accordance with Luzern’s Cancellation/ Returns Policy. This Cancellation /Returns Policy does not affect your statutory rights as a consumer.
12. Age Requirements
12.1 If you order a Product or Services to which a minimum age requirement applies, by ordering that Product or Service you confirm that you are of the required age. If Luzern reasonably believe that you are not legally entitled to order a Product, Luzern reserve the right to cancel your order.
13.1 Certain Products purchased by you from this Web Store may come with an express warranty from the manufacturer or another third party. If your Product is covered by such an express warranty, the terms of the express warranty will be included in the documentation which accompanies the relevant Product and/or will otherwise be made available or notified to you.
13.2 To the maximum extent permitted by applicable law, any express warranty Playertek offers you in respect of a Product are instead of all other terms, conditions and warranties, whether express or implied. Please note, however, that this exclusion (and any express warranty that accompanies your Products) does not affect your statutory rights as a consumer.
14. Limitations of liability
14.1 Nothing in these Terms limits or excludes Luzern’s liability for (i) death or personal injury caused by negligence, (ii) fraudulent misrepresentation, or (iii) any other liability which cannot be limited or excluded by applicable law.
14.2 Subject to Section 14.1 above, Luzern will not be liable, whether in contract, in tort (including, without limitation, negligence), or otherwise arising out of or in connection with these Terms for any: economic losses (including, without limitation, loss of revenues, data, profits, contracts, business or anticipated savings); or loss of goodwill or reputation; or special or indirect losses suffered or incurred by you arising out of or in connection with these Terms.
14.3 You acknowledge that Playertek shall not be liable to you for any misrepresentation, misstatement or breach of any term, condition or warranty given by Luzern in connection with any Products or Services.
14.4 This Section 14 does not affect your statutory rights as a consumer, nor does it affect your cancellation rights under the [Consumer Protection (Distance Selling) Regulations 2000].
15. Electronic Communications
15.1 When you visit this Web Store or send e-mails to Luzern, you are communicating with Luzern electronically. Luzern communicates with you by e-mail or by posting notices on the website. For contractual purposes, you consent to receive communications from Luzern electronically and you agree that all agreements, notices, disclosures and other communications that Luzern provides to you electronically satisfy any legal requirement that such communications be in writing. This term does not affect your statutory rights as a consumer.
16. Assignment, subcontracting etc
16.1 Luzern reserves the right to transfer, assign, novate or sub-contract all or any of Luzern’s rights and obligations under these Terms. You may not assign, sub-contract or otherwise transfer any of your rights or obligations under these Terms without Luzern’s consent in writing.
17. Amendments to these Terms
17.1 Luzern reserves the right to make changes to these Terms at any time. You, and any contract of sale between you and Luzern, will be subject to the version of these Terms in force at the time you order the Products or Services in question from Luzern.
18. Events beyond Luzern’s reasonable control
18.1 Luzern will not be held responsible for any delay or failure to perform or comply with Luzern’s obligations under these Terms if the delay or failure arises from any cause which is beyond Luzern’s reasonable control.
19.1 Each provision of these Terms shall be construed separately and independently of each other. If any provision is deemed invalid, void or otherwise unenforceable, that provision shall be deemed severable form and not affect the enforceability of any of the other provisions of these Terms.
20. Governing law and jurisdiction
20.1 These Terms and all transactions relating to this Web Store are governed by Irish law and you, and Luzern, hereby submit to the non-exclusive jurisdiction of the Irish courts. However, this will not affect your statutory rights if you are a consumer and applicable consumer law requires application of another law (such as the law of your country of residence).
21. Cancellation & Returns Policy
Please note that the following Cancellation & Returns Policy does not affect your statutory rights as a consumer.
21.1 14 Day Returns Guarantee – Luzern wants you to be totally satisfied with all Products that you purchase from this Web Store. Therefore, if for any reason you are unhappy with a Product, you can return it to Luzern in its original condition within 14 days of the date the Product is dispatched to you provided that the Product is returned to Luzern at the address below in its original packaging and unopened (with any seals and shrink-wraps intact), together with the receipt and Luzern will issue a full refund. Please note that an RMA number must be clearly displayed on the packaging. You must contact a Luzern Customer Service Representative within 14 calendar days from the date your order was dispatched to authorise your return and generate an Return Material Authorisation (RMA) number.
21.2 Please note, however, that you will be responsible for meeting the costs of returning Products under this 14 Day Returns Guarantee to Luzern. Note also that returned Products will be inspected upon receipt and any Products damaged after receipt by you will not be refunded.
21.3 Please note that, where a Product has been supplied to you as part of a bundle of products, in order to exercise this 14 Day Returns Guarantee, all Products within that bundle must be returned to Luzern in their original packaging and unopened (with any seals and shrink-wraps intact).
21.4 Distance Selling Regulations Under the Consumer Protection (Distance Selling) Regulations 2000, you have a right to cancel orders for certain Products purchased from Luzern’s Web Store within 7 working days from the day after the date on which the Product in question was delivered. Please note that this cancellation right does not apply to: Goods made to your specification or which have been clearly personalised.
21.5 To exercise your right of cancellation, please email us at email@example.com or write to Playertek, c/o Luzern Technology Solutions Limited, Blanchardstown Business and Technology Park, Snugborough Road, Dublin 15, Ireland; Fax: +353 1 633 56 13, in each case quoting your order number and instructing us that you wish to cancel that order. Please package the relevant Products to Luzern securely and return it to Luzern with all warranty cards, licenses, manuals, within 14 days of giving Luzern notice that you wish to cancel the order at the above address
22. Sharing of Order Data with other parties:
Luzern is the Seller & Merchant of Record for this store. Luzern will share your order data with
22.1 Sharing of Personal Data:
If, on this store, you have expressly provided consent to receive non-order-related communications from
COMPETITION TERMS AND CONDITIONS
1. Promotion: Win a set of PlayerTek devices for your entire team
2. Promoter: Catapult Sports Pty Ltd ACN 137 513 378 of The Clocktower, 1 Aurora Lane, Docklands, VIC 3008, Australia
3. Promotional Period:
Start Date: Australian time 8am on Monday 5th June 2017
End Date: Australian time 8pm on Monday 19th June 2017
4. Eligible Participants:
Entry is open to persons who fulfill the following criteria:
Australian residents aged 18+; and
persons who are members of an amateur sporting team.
The directors, officers, employees of the Promoter and its related bodies corporate and their immediate families and any of the Promoter’s contractors associated with this Promotion and their immediate families are not eligible to participate in this Promotion.
Excluded Persons may not enter. “Excluded Persons” means any person identified as a minor. If a person is identified as an Excluded Person, the Promoter reserves the right to refuse to allow the person to take part in the Promotion, or receive, any or all aspects of the Prize.
5. How to Enter:
This promotion is being run through two social media platforms simultaneously, namely LinkedIn and Twitter. Entry into this promotion is only available through the social media platform run by Linked In Corporation (LinkedIn) and Twitter Inc (Twitter)..
Eligible Participants who satisfy the following criteria (each, an “Eligible Entrant”) will be entered into the Promotion:
like this competition on LinkedIn or Twitter social media platforms; and
post a response to the following question on LinkedIn or Twitter social media platforms: in twenty words or less, tell me why your team deserves to win a full set of PlayerTek devices.
There will be one opportunity to win the prize during the promotional period as defined above.
The Promoter accepts no responsibility for entries that are lost, delayed, corrupted, damaged, misdirected or incomplete or not received during the Promotional Period.
6. Use of LinkedIn/Twitter:
7. Number of Entries Permitted: Eligible Participants may enter the Promotion one time
8. Winning Entry Criteria: The most creative response to the task: “in twenty words or less, tell me why your team deserves to win a full set of PlayerTek devices” will win. One winner will be selected from all of the entries posted on both LinkedIn and Twitter.
9.Prize: The Winner will be entitled to the Prize detailed at item 12 below. The maximum value of the total prize pool is $8,400.00, the minimum value of the total prize pool is $350.00.
10. Prize Description: A PlayerTek device for each member of the Winner’s amateur sporting team, up to a maximum of 24 PlayerTek Devices
11. Value (per prize): Maximum of $8,400.00
12. Judging: The entries from all Eligible Participants will be judged on Friday 8th June 2017 Catapult Sports Pty Ltd of The Clocktower, 1 Aurora Lane, Docklands, VIC 3008, Australia. The Judge’s decision is final and no correspondence will be entered into.
13. Notification of Prize Winners: The Prize Winner will be announced on Monday 26th June 2017 and will be notified by telephone and by a post on LinkedIn and Twitter. The Winner’s details may be published on LinkedIn and Twitter and on Catapult’s or any of Catapult’s related bodies corporate’s websites.
14. Unclaimed Prize: If. for any reason whatsoever a Winner does not accept a Prize (including if the Promoter is not able to successfully get in contact with the Winner), then the Prize will be forfeited by the Winner.
General Terms and Conditions
Each Eligible Participant acknowledges and agrees that he/she has read these Conditions of Entry and that entry into the Promotion is deemed to be acceptance of these Conditions of Entry.
In the event that a Winner or Unclaimed Prize Draw Winner is identified as being in breach of these Terms and Conditions (the “Refused Winner”), the Promoter reserves the right to refuse to allow the Winner to take part in, or receive, any or all aspects of the Prize, and the Promoter will award the Prize to another Winner in accordance with Item 7 above.
1. Exclusion of Liability
a. Whilst the promoter will use all reasonable endeavours to arrange the delivery of the Prize, by entering this Promotion, a Winner/Unclaimed Prize Draw Winner acknowledges that circumstances beyond the control of the Promoter may prevent the delivery of the Prize (including the failure by the Winner/Unclaimed Prize Draw Winner to notify the Promoter of any change to their delivery details). In such circumstances where the Promoter forms a reasonable belief that any delay or loss of the Prize has not been caused or contributed by the Winner’s negligence, fraud or misconduct, the Promoter may (if circumstances permit) re-deliver the Prize to the Winner.
b. To the extent permitted by law, the Promoter is not liable for any loss, including, but not limited to, direct, consequential (including economic) or indirect loss or any loss of profits, by reason of any act or omission, deliberate or negligent, by the Promoter or their servants or agents, in connection with this Promotion or the arrangement for supply, or the supply or failure to supply, of any goods or services by any person to a Winner or Unclaimed Prize Draw Winner.
c. Nothing in these Terms and Conditions affect, nor is intended to affect, any rights that an Eligible Participant might have that are not able to be excluded under applicable Australian consumer protection laws.
2. Use of Personal Information / Marketing
a. The Promoter complies with the Australian Privacy Principles contained in the Privacy Act 1988 (Cth).
b. Any entries become the property of the Promoter. Any information Eligible Participants provide will be used by the Promoter for the purpose of conducting this Promotion.
c. The Promoter may disclose Eligible Participants’ personal information to its contractors and agents to assist in conducting this Promotion or communicating with Eligible Participants.
d. By entering the Promotion, Eligible Participants consent to their personal information being collected, used and disclosed by the Promoter, its agents, affiliates, related business companies, other companies associated with this Promotion, and business partners for any promotional activities, including the Eligible Participant’s personal participation in reasonable promotional activities as requested by the Promoter, and any marketing and publicity purposes without any further reference, payment or other compensation to the Eligible Participant.
e. Eligible Participants’ consent includes authorising the Promoter, its agents, affiliates, related business companies, other companies associated with this Promotion and business partners to send the Eligible Participant future direct mail and/or electronic messages including but not limited to, SMS, MMS, and email regarding any promotional, marketing and publicity activities.
f. All Eligible Participants consent to the publication of their name and agree to participate in reasonable Promotion activities as requested by the Promoter without any further payment or compensation.
a. The Promoter, its employees, officers, agents and its parent companies and subsidiaries are not responsible for and shall not be liable for:
i. Any condition caused by events beyond the control of the Promoter that may cause the Promotion to be disrupted or corrupted;
ii. Any injuries, losses (including, without limitation, loss of profits), or damages of any kind caused by the Prize or resulting from acceptance, possession, use, or misuse of the Prize, or from participation in the Promotion or downloading material from tabrewards.com.au or tab.com.au; or
iii. Any printing or typographical errors in any materials associated with the Promotion.
b. The Promoter reserves the right to:
i. Cancel or suspend the Promotion, should the security, fairness, integrity, or proper operation of the Promotion be compromised in any way by way of any virus or bugs in the IT system used for this Promotion, unauthorised human intervention, or other causes beyond the reasonable control of the Promoter;
ii. Disqualify any Eligible Participant who engages in offensive, illegal or objectionable conduct in respect of this Promotion;
iii. Disqualify any Eligible Participant who tampers with the entry process, or who submits an entry that is not in accordance with these Terms and Conditions;
iv. Cancel, terminate, modify or suspend the Promotion in accordance with any written directions given by any relevant government or regulatory authority to do so;
v. Request a Winner or Unclaimed Prize Draw Winner provide proof of age, identity or proof of residency at the nominated Prize delivery address.
c. In the case of the intervention of any outside agent or event which naturally changes the result or prevents or hinders its determination, including but not limited to vandalism, power failures, systems failures, tempests, natural disasters, acts of God, civil unrest or strikes, the Promoter may in its absolute discretion cancel the Promotion or part of the Promotion and recommence it from the start on the same conditions subject to Australian law.
d. By entering this Promotion, Eligible Participants acknowledge that it is a condition of accepting the Prize that they may be required to sign a legal release in a form reasonably determined by the Promoter.
e. To the extent that a situation or issue arises for which these Terms and Conditions make no provision or in relation to which the relevant Terms and Conditions are unclear, the Promoter will make a decision regarding such situation.
f. If any provision of these terms and conditions is held invalid by any law, rule, order or regulation of any government, or by the final determination of any court of a competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions not held to be invalid.
g. This promotion and all issues arising out of it shall be governed in accordance with Victorian law and are subject to the non-exclusive jurisdiction of the Victorian courts.
Address for returns:
c/o Luzern Technology Solutions Limited,
Blanchardstown Business and Technology Park,
If you elect to return substitute goods under the Distance Selling Regulations, Luzern will meet the reasonable costs of returning the substitute goods. Please note that you will be responsible for the costs of returning the items to Luzern unless Luzern delivered the item to you in error, or if the item is damaged or defective. If Luzern does not receive the item back from you, together with all warranty cards, licenses and manuals, Luzern may arrange for collection of the item from your residence at your cost. Where a Product has been purchased by you as part of a bundle of products, all Products within that bundle must be returned.