THIS AGREEMENT made the 19th day of May 1995.
BETWEEN:
AGTSPORTS (AUSTRALIA) PTY. LIMITED A.C.N. 066 003 183 of 0/000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx, 0000 (hereafter referred to as "AGT") and
AGTSPORTS, INCORPORATED of 0000 Xxxxx Xxxxxx Xxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, XXX (hereafter referred to as "AGT Inc.")
AND
VICTORIAN Golf ASSOCIATION of 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 0000
Xxxxxxxxx (hereafter referred to as "VGA")
WHEREAS:
A. AGT is in the business of developing and servicing certain computer
hardware and software products for use within the golf industry; and
B. AGT Inc. is building its Australian corporation AGTsports (Australia) Pty.
Limited and the corporate objective of AGT Inc. and AGT is to install
computer systems into golf facilities throughout Australia, and
C. AGT and AGT, Inc. are desirous of entering into an agreement with VGA and
other agreements with other associations and organizations within the golf
industry for the distribution and internal use of the products and services
described herein.
AND WHEREAS VGA is seeking to upgrade the computer system and software
requirements it uses to operate its activities and has agreed to accept
products and services from AGT in return for providing promotional
opportunities as set out herein.
THE PARTIES AGREE AS FOLLOWS:
Definitions
1. (a) "The Golf Players"
The Golf Players System includes, but is not limited to various
software applications for golf tournaments set up and management
applications and handicapping applications, player and course
statistical information; membership applications and management and
other licensed software products.
(b) "Confidential Information" of a party to this Agreement means all
information and data (and all copies and extracts made of or from such
information and data) concerning the operations, dealings, business,
finance,
members, affiliates, transactions, prospects, markets and affairs of
the party including all such information and data recorded or stored
by means of a mechanical, electronic or other device OTHER THAN such
information and data which has entered into the public domain.
2. (a) Products and Services
"Products and Services" includes, but is not limited to hardware
products including IBM compatible personal computer terminals,
communications devices, printers, storage devices, CD-Rom drives,
certain optical scanning devices, magnetic card readers, network
servers and other peripheral equipment and certain software products
which include, but are not limited to MS-DOS Windows operating and
applications products and also including "Golf Players System".
3. Term
The Agreement will be for a term of five (5) years from the date of this
Agreement. If both parties agree the five year term may be extended at the
end of the initial five year term.
4. Supply of Products and Services
AGT will at no cost to VGA -
(i) supply mutually agreed computer and software components;
(ii) upgrade the system requirements of VGA in the first instance through
the installation of the items listed in the attached Schedule;
(iii)install the equipment and train the appropriate staff as
nominated by VGA in the proper use of the computer systems and
network;
(iv) upgrade both the hardware and software requirements of the VGA at
least once every five years or more often in order to ensure that
hardware and software are at the appropriate level of operating
standards and sophistication of the VGA's requirements;
(v) service hardware and software and provide all spare parts required;
(vi) supply technical support at major tournament events conducted by VGA,
to supply technical support for the
office staff including the supply of optical scan cards and any
necessary support for their use to meet the requirements of the VGA
for the scoring of these tournaments;
(vii) modify its present tournament software to meet the local needs of
VGA;
(viii) supply the computer requirements of the Association's news
publication. If the requirements are for MAC equipment, the VGA agrees
to barter for appropriate space in the publication to cover the out of
pocket costs for this equipment.
5. Title
AGT agrees the title to the equipment and to each part or any
replacement thereof set out in the Schedule shall transfer to VGA on delivery
of the equipment to the premises of VGA. It is understood that the title of
the equipment and the software licenses are for the use of VGA and its
present and future affiliate's. This title is not transferable to any other
individual, company or entity other than an affiliate of the VGA. The VGA
may continue to utilize the software licenses for its own use after the end
of the term.
6. LIABILITY for Loss and Damage
The risk in the equipment shall pass to VGA upon delivery and VGA accepts
responsibility for insurance from that time.
7. Warranty and indemnity
AGT warrants that the equipment it supplies pursuant to this Agreement shall
be new and free of any encumbrances and that it is authorised to give title
in the equipment and a license to use the software and indemnifies and will
keep indemnified VGA in respect of any losses costs or damages which may
arise as a result of any default on the part of the AGT pursuant to the
provisions of this clause.
8. Obligations of VGA
VGA agrees -
(a) to use (but not on an exclusive basis) AGT software at all of its
tournament events and to display certain mutually agree logos and
other company marks at those tournament sites which will be provided
by AGT without
cost to VGA;
(b) to use its best endeavors to help AGT to introduce its products and
services to the affiliated members of VGA;
(c) that AGT has the right of first refusal to supply all of the computer
requirements of VGA through the term of this Agreement in relation to
hardware or software hating the same or better specifications, quality
and performance as required by the VGA provided that such right must
be exercised within fourteen (14) days of receipt of notification
from VGA of its requirements and terms and conditions of supply;
(d) subject to Clause 4(vi), to make AGT's optical scan cards the official
scorecard of the tournament events which are under the total control
of VGA, the scorecards and appropriate stationary being provided at no
cost to VGA;
(e) to use its best endeavors to assist AGT in having the optical scan
scorecard adopted in all tournament events in Victoria including
events sanctioned by the VGA and its member golf facilities and
societies.
9. Obligations of Both Parties
Both parties agree:
(a) to be responsible for their own reports and document filings, tax
returns;
(b) to give each other reasonable access to all application records and
documentation pertaining to the golf tournaments covered by this
Agreement and all appropriate activities thereof;
10. Termination
Either party may terminate this Agreement forthwith upon the happening of
any of the following events:-
(a) The other party fails to observe or perform any provisions of this
Agreement and failing to remedy such breach within thirty (30) days
after written notice thereof has been given to the party in breach
(b) The other commits any acts of bankruptcy or insolvency or a petition
is presented for the bankruptcy or winding-up of the other or a
resolution is passed for the winding-up of the other otherwise than
for the purposes of amalgamation or reconstruction.
(c) The other enters a compromise or arrangement with creditors or a
receiver or an official manager of the other or of any of its assets
is appointed.
The VGA may terminate this Agreement forthwith upon the happening of
any of the following events:
(d) If AGT is unable to deliver and provide the equipment required in the
terms of this Agreement within ninety (90) days of the date of this
Agreement.
(e) If AGT is unable to complete installation of the agreed software
programs within six (6) months of the date of this Agreement
11. Amendments of Agreement in Writing
No amendment or modification of this Agreement or any provision of this
Agreement shall be effective unless in writing and signed by both parties.
12. Waiver
No waiver by either party whether express or implied of any provisions of
this Agreement or of any breach or default of either party shall constitute
a continuing waiver or a waiver of any other provision of this Agreement
unless made in writing and signed by the parties against whom the waiver
would otherwise be in force
13. Jurisdiction
This Agreement shall be governed by and construed in accordance with the
law for the time being of the State of Victoria and Federal Laws of
Australia.
14. Entire Agreement
This Agreement constitutes the entire agreement between the parties
regarding the subject matter hereof and supersedes and replaces all
agreements, arrangements and understanding relating to the subject matter
hereof whether reduced to writing or not that may have preceded this
Agreement. The parties acknowledge that no warranties or representations
have been given by the other party or any person on behalf of either party
or relied upon by either party in entering into this Agreement nor shall
any be implied unless and except to the extent that they are expressly
contained in this Agreement.
15. Confidentiality
(a) Each party acknowledges that all Confidential Information of the other
party which may come into its possession during the term of this
Agreement is, and remains, the property of the other party.
(b) A party to this Agreement shall not disclose to any other person any
Confidential Information of the other party without the other party's
written consent and a part shall not make use of any Confidential
Information of the other party to gain, directly or indirectly, any
improper advantage to itself or to any other person or company.
16. Representations
Neither party shall make any representation on behalf of, or claim any
affiliation with or sponsorship of the other party, without the prior
approval of the other party to the nature and extant off the
representation, affiliation or sponsorship.
17. Joint and Several Obligations
The obligations of AGT and AGT, Inc. under this Agreement bind them jointly
and severally,
IN WITNESS WHEREOF the parties hereto have set their hands and affixed their
seals on the day and year first hereinbefore written.
THE COMMON SEAL of AGTSPORTS )
(AUSTRALIA) PTY. LTD. A.C.N. 066 003 183 was )XXXX XXXXXXXXX
hereunto affixed by direction of the Board in )Director
the presence of: )
................................................
Secretary
THE COMMON SEAL OF AGTsports )
INCORPORATED was hereunto affixed by direction )XXXX XXXXXXXXX
of the Board in the presence of: )Director
................................................
Secretary
