“SUBSCRIPTION TERMS AND CONDITIONS”
THIS HIRE AND LICENSE AGREEMENT is made on the date of the relevant Transaction
ZING INTERNATIONAL PTY LTD of 6 Todd Street, Port Adelaide, SA 5015, Australia ABN 46154256372 (“Zing”)
THE MEMBER, the party as identified as the member in the Registration Form relevant to the Transaction (“Member”)
THE REPRESENTATIVE, the individual completing the Registration Form and Subscription process on behalf of the Member (“Representative”)
The Member wishes to subscribe to hire the flashing wicket equipment of Zing and to be granted a license to use them, both on the terms as set out in this Agreement.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS
1. The following definitions are used but not otherwise defined in this Agreement;
a. “Annual Subscription Fees” shall for the first three Subscription Years be the annual fees payable as part of the Transaction, thereafter Zing, at its sole discretion, may vary the annual subscription fees applicable to each Offer, these fees shall be publicised as applicable to the relevant Offer on the Website at least 30 days before the end of the third year of the Term, and thereafter at least 30 days before the end of each relevant Subscription Year.
b. “Balance Fees” shall be any fees payable by the Member under this Agreement other than the Annual Subscription Fees, for example and without limitation, Delivery Fees, Replacement Equipment Fees, Lost Fees and any TV Match Fees.
c. “Club Zing” is the collection of Members from time to time that have subscribe to one or more of the Offers.
d. “Credit Card” means any credit card used by the Member to pay for the initial Annual Subscription Fee or any other alternative credit card provided to Zing from time to time for the purposes of paying for any Annual Subscription Fees and any applicable Balance Fees and any other fees applicable under this Agreement.
e. “Cricket Activity” means any reasonable activity during an organised cricket match (other than TV Cricket), cricket training or practice session, or ‘backyard’ cricket match (examples of activities which would not be deemed ‘reasonable’ for the purposes of this definition and Agreement include, without limitation, intentionally hitting the Equipment with a cricket bat or other object or body part or intentionally throwing the Equipment).
f. “Cricket Activity Damage” means damage to an item of the Equipment resulting from a Cricket Activity which results in the relevant item of Equipment no longer being fit for purpose and requiring replacement. For the avoidance of doubt the following does not render the relevant Equipment not fit for purpose for the purpose of Cricket Activity Damage or for the purposes of this Agreement; cosmetic damage, such as dents, scratches or abrasions or other normal wear and tear, corrosion of the battery terminals, four or less stump LEDs broken or not working, two or less bail LEDs broken or not working.
g. “Delivery Fees” means those fees for each delivery required under this Agreement as set out in Schedule 1 hereto.
h. “Equipment” means; the equipment that is included in the Offer(s) subscribed to in the Transaction. It also includes any Replacement Equipment or New Series Equipment you are provided by Zing during the Term.
i. “Event of Default” means one of the events listed in paragraph 79 below.
j. “Intellectual Property Rights” means any patent, copyright, design rights (both registered and unregistered), trade marks (registered and unregistered) or other industrial or intellectual property rights, including any applications for any of the foregoing.
k. “Lost Fees” means the fees payable by the Member to Zing for losing item(s) of the Equipment. The quantum of fees payable for losing each item of the Equipment are set out in Schedule 1 hereto.
l. “Member” means the entity (for example club or school or individual) identified as the member in the Registration Form .
m. “New Series Equipment” means any new items of cricket equipment or upgraded items of Equipment which Zing may have available from time to time.
n. “Non-Cricket Activity” means any activity other than a Cricket Activity, including, without limitation over exposure to the weather, including rain.
o. “Offer” means any one unit of Offer 1 or Offer 2. So by way of example only, if a Member subscribed to 3 x Offer 1 and 2 x Offer 2, that Member’s Subscription and Equipment would consist of 5 x Offers in total.
p. “Offer 1” means the subscription under license to the hire, as set out in this Agreement, of the items as set out in Schedule 2 of this Agreement.
q. “Offer 2’ means the subscription under license to the hire, as set out in this Agreement, of the items as set out in Schedule 3 of this Agreement.
r. “Registration Form” means the form submitted via the Website, which is required prior to an Offer being subscribed to, and forms part of the Transaction. The information required includes the Club or School or other entity on behalf of whom the relevant Offer(s) are being subscribed to, the person who is the point of contact at the Member and the relevant contact details of the Member, including address for deliveries of Equipment and the service of notices under this Agreement.
s. “Replacement Equipment” means any item of Equipment provided to the Member as a result of any Equipment being lost, stolen or damaged. Replacement Equipment provided by Zing may either be new or second hand.
t. “Replacement Fee” shall be the fees payable in relation to the relevant item(s) of Equipment lost, stolen or damaged by Non-Cricket Activity as set out in Schedule 1, or as revised from time to time at Zing’s sole discretion.
u. “Representative” means the individual completing the Registration Form and Subscription process, including agreeing to these terms and conditions, on behalf of the Member.
v. “Schedule 1” means the schedule to this Agreement headed Schedule 1.
w. “Subscription” means the hire and license arrangements of the Equipment included in the Offer(s) entered by the relevant Transaction during which the Member has agreed to the terms and conditions set out in this Agreement. For the avoidance of doubt the Subscription may comprise more than one Offer and more than one unit of each particular Offer.
x. “Subscription Year” means the twelve month period from when the member first takes delivery of the Equipment or any subsequent twelve month period from the end of that initial twelve month period.
y. “Subsequent Fees” means any Annual Subscription Fees payable following the initial three Subscription Years.
z. “TV Cricket” means any cricket of which a material proportion is shown or intended to be shown on television or other screen device, either over the internet, cable, satellite or otherwise.
aa. “Transaction’ means the purchase of one or more of the above Offer(s), normally by completing the process to subscribe to one or more Offer(s) on the Website, the Transaction also includes the completion of the Registration Form.
bb. “Website” means the Zing website at www.zings.biz.
2. In this Agreement unless the contrary intention appears:
a. a reference to a person includes a reference to a corporation firm association or other entity;
b. references to a person include the personal representatives, successors and assigns of that person;
c. the singular includes the plural and vice versa;
d. a reference to any gender includes a reference to all other genders;
e. references to this Agreement or any other document include the document as varied or replaced, notwithstanding any change in the identity of the parties;
f. a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
g. an agreement, representation or warranty made by two or more persons is made by them jointly and by each of the severally;
h. an agreement, representation or warranty made in favour of two or more persons is made for the benefit of them jointly and for each of the severally; and
i. references to Clauses, Paragraphs and Schedules are references to Clauses and Paragraphs of and Schedules to this Agreement.
LEASE AND LICENSE
3. Zing agrees to lease the Equipment to the Member and grant a license to use the Equipment on the terms set out in this Agreement, and the Member agrees to lease the Equipment from Zing on the terms and conditions set out in this Agreement and to use the Equipment in accordance with the terms and conditions of the license as set out in this Agreement.
4. By completing the Subscription process for the relevant Offer(s) you agree that you want to be delivered the Equipment.
5. The Term commences on delivery of the Equipment and will continue, on a year-to-year basis until Zing or the Member terminates this Agreement and the Equipment is back in the possession of Zing or the Agreement is terminated as a result of this Agreement and the Equipment is back in the possession of Zing, subject to a minimum 3 year subscription period in relation to each Offer (the “Term”).
6. For the avoidance of doubt certain Terms of this Agreement shall extend beyond the Term
7. In the event the Member wishes to terminate the Agreement at the end of any Subscription Year, the Member agrees to so notify Zing prior to end of a contract year and make the Equipment available to Zing for collection within 7 days after the end of the relevant Subscription Year. In the event this isn’t done the Member agrees that the Agreement shall extend for another Subscription Year and to pay the relevant Subscription Fees.
8. Zing may terminate the Agreement at the end of any Subscription Year by giving notice and shall be entitled to collect the Equipment at the end of the relevant Subscription Year. The Member agrees to make the Equipment available for collection within 7 days of the end of the relevant Subscription Year.
9. The terms and conditions herein shall, as necessary to give efficacy to this Agreement, extend beyond the Term, for example, and without limitation terms in relation to Intellectual Property including paragraph 68 in relation to Zing Patents and any fees payable under this Agreement shall remain payable following the Term notwithstanding any prior termination of this Agreement.
10. The member agrees, in consideration the hire and license rights to use the Equipment during the Term, to pay to Zing all fees payable under this Agreement, including without limitation, the Annual Subscription Fees.
11. The member agrees to pay to Zing the Annual Subscription Fees annually in advance, so prior to the commencement of any Subscription Year.
12. The member agrees that in respect of any Offer the minimum period of hire or subscription shall be three Subscription Years. Accordingly the minimum Fees payable under this Agreement shall be minimum of three instalments of Annual Subscription Fees (“Minimum Fees”).
13. The first Annual Subscription Fee shall be payable prior to receiving the Equipment and then prior to the commencement of any subsequent Subscription Year.
14. The Member agrees to set up the Credit Card so Zing can automatically take payment of the Annual Subscription Fees each year until this Agreement is terminated.
15. The Member authorises Zing to charge to the Credit Card in advance of each Subscription Year the Annual Subscription Fees, the Balance Fees and any other fees payable to Zing under this Agreement.
16. The Member shall pay the first Annual Subscription Fee via the Website with a Credit Card.
17. The Member authorises Zing to charge payment of any Annual Subscription Fees and any Balance Fees and any other fees payable under this Agreement to the Credit Card.
18. The Member agrees that throughout the Term of this agreement that the Credit Card will remain active, and in the event that the initial Credit Card expires or otherwise becomes inactive, the Member agrees to provide the details of an alternative Credit Card to Zing for the purposes of charging payment of the Annual Subscription Fees, Balance Fees and any other fees payable under this Agreement.
DELIVERY OF EQUIPMENT
19. Zing will deliver the Equipment to the Member, with the Member paying the associated Delivery Fees.
20. The Equipment will be delivered to the address provided to Zing in the Transaction or any alternative address provided to Zing in writing.
21. The Member agrees to ensure that the Equipment can be delivered to this address and signed for at the time of delivery as applicable.
22. If Zing has stock of the Equipment Zing shall deliver the Equipment to the Member as soon as reasonably possible.
23. The member acknowledges that if Zing does not have stock of the Equipment that a lead time of up to 4 months may apply for delivery of the Equipment after the placing of the order by the Member.
24. As mentioned above the first Subscription Year shall not commence until the Member has taken delivery of the Equipment.
25. The Member will be deemed to have taken delivery of the Equipment 48 hours after Zing dispatches the Equipment to the Member. In the event that the Member receives the Equipment later than this date, in order for the first Subscription Year to commence later than 48 hours following dispatch, the Member must inform Zing in writing the date on which the Equipment was actually received.
USE OF EQUIPMNENT
26. The Member agrees to use its best endeavours to maintain the Equipment in good condition. This may involve, as appropriate, without limitation, cleaning the Equipment, keeping it out of the rain, storing it under appropriate conditions.
27. The Member agrees to use the Equipment in a good, careful and appropriate manner and will comply with all of Zing’s requirements and recommendations respecting the Equipment and with any applicable law, whether local, state or federal or international respecting the use of the Equipment, including but not limited to environmental, copyright and patent law.
28. These recommendations regarding the Equipment include, without limitation, reasonably minimising the exposure to rain of the Equipment, not leaving the Equipment in the sun when not being used in a Cricket Activity and not banging the Zing stumps into the ground with a cricket bat (just push them in by hand).
29. The Member will use the Equipment only for the purpose for which it was designed, namely only in organised cricket matches, subject to the below regarding TV Cricket, or cricket training sessions or in ‘backyard’ cricket and not for any other purpose.
30. Unless it has express prior written approval by Zing in respect of every such instance, the Member represents, warrants and undertakes that it shall not use (and shall ensure that no third party uses) the Equipment in any televised cricket match or other event (“TV Cricket”). This is of significant importance to Zing as the Equipment hasn’t been designed for such use. The Equipment is movement activated not specifically activated in accordance with the relevant laws in relation to when a wicket is ‘put down’, accordingly this could be misunderstood and reputational damage to Zing occur. Zing has an alternative product for such use in TV Cricket which is designed to be activated precisely when the wicket is ‘put down’ in accordance with the relevant laws of cricket.
31. In the event the Member uses the Equipment in TV Cricket, Zing shall be entitled to immediately terminate this Agreement and entitled to collect the Equipment immediately. In this event the Member agrees to make the Equipment available for collection by Zing immediately.
32. In addition Member agrees to make an additional payment of $6,000 to Zing for each and every match of TV Cricket (“TV Match Fee”) in which the Equipment is used. The Member acknowledges that Zing has a version of the Equipment for TV cricket, which it has invested significant funds into the development and maintenance, which is, as described above, more suitable for TV cricket and for which customers pay significant per match fees. In addition as the Equipment is designed to flash on movement activation, not strictly in accordance with the laws of cricket. Accordingly the Member agrees the TV Match Fee is a genuine pre-estimate of damage to Zing.
33. The Member hereby authorises Zing to charge any TV Match Fees to the Credit Card.
34. The Member will not alter or modify the Equipment in any way, including not removing or obscuring the Zing logos at the top and base of each stump and on the bails.
35. The Member agrees not to allow any third party to possess or use the Equipment, and for avoidance of doubt the above clauses including TV Match Fees will apply to the Member. The Member agrees that such use beng by an unauthorised third party shall not be an exception to this clause as the Member agrees to undertake and ensure that no third party uses the Equipment.
36. The Member acknowledges there is risk in using the Equipment, for example and without limitation, a wicket keeper could be hit by a ball rebounding from the stumps or be hit by a bail or stump and the Member agrees to use its best endeavours to minimise the chances of such injury occurring and shall indemnify Zing in respect of any claim arising from any use of the Equipment.
LOST/STOLEN EQUIPMENT AND EQUIPMENT DAMAGED BY A NON-CRICKET ACTIVITY
37. The member agrees to use its best endeavours not to lose the Equipment and not to damage the Equipment by a Non-Cricket Activity.
38. To the extend permitted by law, and subject to the terms of this Agreement, the Member, will be responsible for risk of loss, damage or destruction to the Equipment from any and every cause.
39. However if any damage results from a Cricket Activity, then the terms in the following section shall apply in relation to the provision of Replacement Equipment.
40. In the even that the Equipment is lost or stolen or damaged by a Non-Cricket Activity, the Member agrees to inform Zing immediately by email and similarly by email if the Equipment is subsequently found or retrieved.
41. In the event the Equipment is lost, stolen or damaged, subject to the terms of this Agreement, the Member will continue paying the Annual Subscription Fees for a minimum of three years or if the damage or loss occurs after the end of the initial three Subscription Years then until the end of the then relevant Subscription Year.
42. If any item of Equipment is lost, stolen or damaged by a Non-Cricket Activity the Member may obtain the relevant item(s) of Replacement Equipment by contacting Zing. An additional Replacement Fee will apply for each such item of Replacement Equipment as set out in Schedule 1 and the Member authorise Zing to charge such fees to the Credit Card.
EQUIPMENT DAMAGED BY A CRICKET ACTIVITY AND MAINTENANCE
43. In the event that an item of the Equipment suffers any damage, or is lost or stolen the Member agrees to visit the service desk on the Website to trouble-shoot and self diagnose the situation.
44. In the event the Member believes the Equipment has been damaged by a Cricket Activity and has suffered Cricket Activity Damage the Member agrees to email Zing the details of the damage with a photograph(s) showing it.
45. On obtaining any additional information it requires in order to make a determination Zing shall decide at its sole discretion whether the damage constitutes Cricket Activity Damage for the purposes of this Agreement. If Zing determines that an item of Equipment has suffered Cricket Activity Damage then Zing shall provide to the Member an item of Replacement Equipment at no additional cost to the Member, subject to the maximum such quantities in each Subscription Year outlined in the next paragraph. The item of Replacement Equipment provided may either be a new item or an appropriate used item (second hand) at Zing’s sole discretion.
46. The item(s) of Replacement Equipment mentioned in the above paragraph are subject to the following maximums in each Subscription Year; a total of for stump and/or bail items (so by way of example only a maximum of two stumps and two bails in a Subscription Year). In the event that the number of items exceeds four the Member agrees to pay the Replacement Part Fees for the relevant item(s) of Replacement Equipment as though it had been provided for lost/stolen Equipment or Equipment damaged by a Non-Cricket Activity as set out in Schedule 1.
47. Subject to being in stock, Zing shall use its reasonable endeavours to send the relevant item(s) of Replacement Equipment to the Member as soon as possible. The Member agrees to pay for the relevant Delivery Fees and hereby authorises Zing to charge this fee to the Credit Card.
48. The Member agrees that it will post the relevant Equipment item that suffered from Cricket Activity Damage that is being replaced back to Zing within 7 days of Zing confirming it has sent the item(s) of Replacement Equipment. In the event that Zing has not received the relevant item(s) of Equipment back within 14 days the Member agrees to pay the same fees for the item(s) of Replacement Equipment as though it had been provided for lost/stolen Equipment or Equipment damaged by a Non-Cricket Activity as set out in Schedule 1. And hereby authorises Zing to charge such Replacement Part Fee to the Credit Card.
49. When Equipment is returned by the Member to Zing (including when collected by Zing), it shall be at the risk of the Member until it is in the possession of Zing. So in the event it is lost or damaged in transit, ie by Non-Cricket Activities, then any applicable Lost Fees or Non-Cricket Activity Damage Fees shall be payable and Zing is hereby authorised to charge them to the Credit Card.
50. The Member agrees not to attempt to repair any Equipment (other than replacing spigots and removing/inserting batteries) and not to open any Equipment casing other for the purposes of replacing spigots or removing/inserting batteries. For the avoidance of doubt, these activities would constitute Non-Cricket Activities and it is agreed they override damage from a Cricket Activity.
51. For the avoidance of doubt if any item of Equipment has been superseded in the Zing range of Club Zing equipment by a new revised item, Zing shall be entitled to replace the relevant item with the relevant item from the then current range of Zing equipment items.
RETURN OF EQUIPMENT AT THE END OF SUBSCRIPTION
52. Upon the expiry of final Subscription Year the Member represents, warrants and undertakes that it shall within 7 days make all Equipment available for collection by Zing and shall reasonably communicate with Zing in order to facilitate efficient collection.
53. The Member shall pay the Delivery Fees for the Equipment to be collected by Zing and hereby authorises Zing to charge the cost for such delivery to the Credit Card.
54. In the event the Member fails to make the all items of Equipment available for collection by Zing (or otherwise fails to have all items of the Equipment back in Zing’s possession) within 7 days of the end of the final Subscription Year, the Equipment shall be deemed lost, and shall pay a fee of $3,980 to Zing (“Lost Fee”). In this situation it is likely that Zing at its sole discretion shall deduct from the Lost Fee any Annual Subscription Fees for the relevant series of Equipment that the Member has already paid.
55. Member agrees that the Lost Fee applying to the Equipment is a genuine pre-estimate of damage to Zing.
56. The Member hereby authorises Zing to charge the Lost Fee to the Credit Card.
57. In the event the Equipment is subsequently found and returned to Zing within 60 days of the end of the Term Zing shall reimburse the Lost Fee to the Member, less an amount equivalent to the Annual Subscription Fee. In such circumstances and in the event that Zing had not applied the Lost Fee to the Member the Member shall pay the relevant Annual Subscription fee and Zing shall hereby be authorised to charge such fee to the Credit Card.
NEW SERIES OF EQUIPMENT
58. From time to time Zing may have available New Series Equipment. Sometimes, at the sole discretion of Zing, these items will be available to the Member inclusive within their existing Annual Subscription Fees and at other times an additional fee will be applicable in relation to the New Series Equipment. If any additional fee is applicable Zing will agree that in writing with the Member or by agreeing to the applicable arrangement on the relevant page of the Website. Once agreed the Member hereby authorises to charge the applicable fees to the Credit Card. Once the Member has received New Series Equipment it shall be deemed Equipment for the purposes of this Agreement.
59. For the avoidance of doubt the Member agrees to pay the Delivery Fees in relation to the delivery of any New Series Equipment in accordance with the other terms of this Agreement. The Member hereby authorises Zing to charge any such Delivery Fees to the Credit Card.
60. In addition the Member agrees at Zings request to return to Zing any item of Equipment which is replaced by an item of New Series Equipment. The Member also agrees to pay the Delivery Fees in relation to the return of any such items of Equipment in accordance with the other relevant terms of this Agreement. The member hereby authorises Zing to charge any such Delivery Fees to the Credit Card.
61. The Equipment is at all times the property of Zing and will remain the property of Zing.
62. The Member will not encumber the Equipment or allow the Equipment to be encumbered or pledge the Equipment as security in any manner.
63. Zing warrants that Zing has the right to lease the Equipment according to the terms of this Agreement.
64. Zing warrants, subject to no Event of Default occurring, that Zing will not disturb the Member’s quiet and peaceful possession of the Equipment or the Member’s unrestricted use of the Equipment for Cricket Activities.
65. The Member acknowledges that Zing owns all Intellectual Property Rights in respect of the Zing name, logo and Equipment.
66. The Member acknowledges that it shall by this Agreement or use acquire any title, rights or interest in the Intellectual Property rights which subsist in respect of the Zing name, logo or Equipment.
67. The Member agrees not to use the Intellectual Property Rights in the Zing name, logo and Equipment in any way whatsoever, other than by using the Equipment (which is branded with Zing logos) for Cricket Activities.
68. The Member acknowledges the existence of the Zing’s patents and patent applications in respect of the Equipment (“Zing Patents”) and not to use during and following the Term any equipment of a third party supplier that is similar in anyway to the Equipment that infringes the Zing Patents or in anyway way falls within the claims of the Zing Patents.
ZING MARKETING AND MEMBER DETAILS
69. The Member grants the right to Zing to publicise the fact, by using the name of the Member, in Zing marketing material or otherwise, for example and without limitation on the Website, that the Member is a Subscriber to the Offer(s) and is a member of Club Zing.
70. The Member agrees that Zing may store any contact details and other data or information provided by the Member to Zing during the Transaction (“Member Details”) and use the Member Details to, without limitation, contact the Member in the future about any new Zing products.
71. The Member agrees that Zing may provide the Member Details to third parties if in Zing’s sole discretion Zing believes it will be in the Member’s interests.
72. The Member agrees that it shall for the duration of the Term and for as long as the Member has possession of the Equipment, have in place or take out, maintain and pay for comprehensive general liability insurance against claims for bodily injury, including death and property damage or loss arising out of the use of the Equipment. The insurance policy will have limits of at least $10,000,000.
73. The Member will report and pay all taxes, fees, duties and charges associated with the Equipment, with the use of the Equipment, and with revenues and profits arising out of the use of the Equipment.
74. The Member will indemnify and hold harmless Zing against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including legal fees and costs, arising out of or related to the Member’s use of the Equipment.
REPRESENTATIVE REPRESENTATION AND WARRANTY
75. The Representative represents and warrants that he or she is authorised to enter this Agreement on behalf of the Member and that entering this Agreement is in the Member’s best interests.
76. The Representative represents and warrants that the Member is a legal entity capable of entering this Agreement, and that it has the funds to fulfil and shall fulfil the payment obligations under this Agreement.
77. The Representative agrees that in the event the Member is not in fact a legal entity or is otherwise not capable of entering this Agreement that the Representative shall be deemed to also be the Member for the purposes of this Agreement and the Representative agrees, represents and warrants that in such circumstances the Representative shall fulfil all obligations, including the payment of fees, of the Member under this Agreement.
78. If the Credit Card belongs to the Representative the Representative represents and warrants to personally fulfil all obligations in this Agreement relating to the Credit Card.
79. The occurrence of any one or more of the following events will constitute an event of default (“Event of Default”) under this Agreement;
a. The Member fails to pay any amount provided for in this Agreement when such amount is due. Including if Zing attempts to charge any fee to the Credit Card and the Credit Card has expired, or limit exceeded or otherwise declines the transaction.
b. The Member uses the Equipment for any other purpose other than Cricket Activities.
c. The Member uses or intends to use the Equipment in TV Cricket.
d. Any third party uses the Equipment.
e. The Member otherwise breaches its obligations under this Agreement.
f. The Member becomes insolvent or makes an assignment of rights or property for the benefit of creditors or files for or has bankruptcy proceedings instituted against it under the bankruptcy law of Australia or another competent jurisdiction.
g. A writ of attachment or execution is levied on the Equipment and is not released or satisfied within 10 days.
80. On the occurrence of an Event of Default, Zing will be entitled to pursue any one or more of the following remedies (the “Remedies”):
a. Declare the entire amount of Minimum Fees, or if in year 4 or beyond of the Term any subsequent Annual Subscription Fees applicable, immediately due and payable without notice or demand to the Member. The Member hereby authorises Zing to charge any such fees to the Credit Card.
b. Zing may charge any TV Match Fees to the Credit Card.
c. Commence legal proceedings to recover any Minimum Fees, Subsequent Fees, Lost Fees, TV Match Fees and any other fees under this Agreement accrued before and after the Event of Default.
d. Take possession of the Equipment, without demand or notice, wherever same many be located, without any court order or other process of law. The Member waives any and all damage occasioned by taking such taking of possession.
e. Terminate this Agreement immediately upon written notice to the Member.
f. Pursue any other remedy available in law or equity.
81. Zing may assign at any time this Agreement, Zing’s interest in this Agreement and Zing’s interest in the Equipment to another party.
82. The Member will not assign this Agreement, the Member’s interest in this Agreement or the Member’s interest in the Equipment without the Prior written consent of Zing.
83. If the Member assigns this Agreement, the Member’s interest in this Agreement or the Member’s interest in the Equipment without the prior written consent of Zing, Zing will have recourse to the Remedies and will be entitled to all damages caused by the assignment (including, without limitation, from any use of the Equipment in TV Cricket or in Non-Cricket Activities) and the Member agrees that it shall be responsible for any fees that come out of the possession or use of the Equipment, both during and following the Term, by the relevant third party as though the Member was possessing or using the Equipment. So for the avoidance of doubt the Member shall pay, without imitation, any applicable Lost Fees, TV Cricket Fees or fees from damage to the Equipment from Non-Cricket Activities. The member hereby authorises Zing to charge any such fees to the Credit Card.
84. This Agreement will constitute the entire agreement between the Parties. Any prior understanding or representation of any kind preceding the date of this Agreement will not be binding on either Party except to the extent incorporated in this Agreement.
85. Any amendment to this Agreement after the commencement of the Term must be evidenced in writing or by agreeing to any such amendment on the Website.
ADDRESS FOR NOTICE AND DELIVERY
86. Service of all notices under this Agreement will be delivered personally or sent by registered mail or courier to the following addresses;
Zing; Zing International Pty Ltd, Suite 39/6 Todd St Port Adelaide SA 5015 Australia
Member; The address as recorded during the Transaction.
87. All dollar amounts in this Agreement refer to Australian Dollars, and all payments required to be paid under this Agreement will be paid in Australian dollars unless the Parties agree otherwise.
88. Interest payable on any overdue amounts under this Agreement will be at a rate of 20% per annum or at the maximum rate allowed under applicable legislation, whichever is lower.
89. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
90. This Agreement will be construed in accordance with and governed by the laws of South Australia and the Parties submit to the exclusive jurisdiction of the South Australian courts.
91. If there is a conflict between any provision of this Agreement and the applicable legislation of South Australia (the “Act”), the Act will prevail and such provisions of the Agreement will be amended or deleted as necessary in order to comply with the Act. Further, any provisions that are required by the Act are incorporated into this Agreement.
92. If there is a conflict between any provisions of this Agreement and any form of lease prescribed by the Act, that prescribed form will prevail and such provisions of the Agreement will be amended or deleted as necessary in order to comply with the at prescribed form. Further, any provisions that are required by that prescribed form are incorporated into this Agreement.
93. This Agreement shall be executed by the Member completing Transaction on the Website. The Transaction can not be completed without the Member agreeing to the terms and conditions as set out in this Agreement.
94. Time is of the essence in this Agreement.
95. This Agreement will extend to and be binding upon and inure to the benefit of the respective heirs, executors, administrators, successors and assigns, as the case may be, of each Party to this Agreement.
NOTICE TO THE MEMBER
96. NOTICE TO THE MEMBER: this is a lease. You are not buying the Equipment. If you do not wish to be bound by the terms of this Agreement do not complete the subscription process and if you have already done so you are advised to return the Equipment to Zing straight away. For the avoidance of doubt any fees already incurred under this Agreement shall remain payable in accordance with the terms of this Agreement.
SCHEDULE 1 – REPLACEMENT FEES
Replacement Fees for Replacement Equipment including replacing damaged Equipment from Non-Cricket Activities:
Zing Flashing Stump $375 each
Zing middle stump $50 each
Zing Bail $125 each
Bail spigots x 4 $30 pack of 4
Stump Charger $120 each
Bail Charger $100 each
Stump Batteries $60 pack of 4
Bail Batteries $40 pack of 4
Power adaptor $10 each
Charger cables $20 2x
Carry bag $100 each
SCHEDULE 2 – OFFER 1
Equipment items included in Offer 1;
4 x Zing Flashing Stump
2 x Zing Non-Flashing middle stump
4 x Zing Flashing Bail
1 x Stump Charger
1 x Bail Charger
8 x Stump Batteries
8 x Bail Batteries
1 x Power Adaptor
2 x Charger Cables
1x Carry Bag
SCHEDULE 3 – OFFER 2
Equipment items included in Offer 1;
2 x Zing Flashing Stump
1 x Zing Non-Flashing middle stump
2 x Zing Flashing Bail
1 x Stump Charger
1 x Bail Charger
4 x Stump Batteries
4 x Bail Batteries
1 x Power Adaptor
1 x Charger Cables
1 x Carry Bag