Software Development Project Contract

 

Contract for Software Development and Web Projects

These are the terms and conditions under which we are willing to provide software development and consulting services to you. By proceeding with the project you are deemed to have accepted these terms and to be bound by them.

We are: Digital Catalyst Group Pty Ltd ("the Writer")

ACN: 103 998 885
ABN: 63 103 998 885

Our address is: Level 26, 44 Market Street
Sydney NSW 2000
Australia

Our main e-mail is: info [at] digcat.com
Our support email is: support [at] digcat.com

You are: Any person or entity who pays us for our software development and consulting services ("the Client").

Contents

1 Definitions
2 Interpretation
3 Basis of contract
4 Representative liaison
5 Project management procedure
6 Content of the Proposal
7 Text modifications
8 Variations
9 Testing and acceptance
10 Price and payment
11 Demonstration and training
12 Exclusions from contract
13 Confidentiality
14 Third party software rights
15 Intellectual property ownership
16 Indemnity by client
17 Disclaimers and limitation of liability
18 Termination
19 Force Majeure
20 Miscellaneous matters

These are the agreed terms:

1 Definitions

“Excluded Matters”  means commercial arrangements for which the Writer is not responsible and which are pre-requisite to the operation of the Website.

"Intellectual Property" means intellectual property owned by the Writer, of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights.

“Phase” means one of the numbered stages in the Timetable section of The Proposal or Sprints of a longer term (SCRUM) project.

“Price”  means the price for the Project or a part of the Project as set out in The Proposal.

“Project” means all work in connection with the design and writing of the Website until the Website is fully operational with every dynamic element and every link fully functional.

“Proposal” means the document which accompanies this Contract which details the features of the Project including milestones, pricing, terms and conditions and details of service.

"Timetable"  (if included in the Proposal) means the timetable specifying the intended dates of completion of each Phase of the Project and subject to alteration in the course of completing the Project.

“Website” means the Website of the Client, to be designed, development or modified under the terms of this contract.

“Website Documentation” means the instruction manuals, user guides and other documentation where agreed to be written or provided by the Writer in the Proposal.

“Website Host” means a firm or company in the business of hosting Websites, with whom the Client shall have contracted to host the Website.

2 Interpretation

In this agreement, unless the context otherwise requires:

2.1 A reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.

2.2 A reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.

2.3 A reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.

2.4 The headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation.

2.5 Any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;

2.6 In any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party, such cost currently calculated at the rate of A$110.00 per hour inclusive of GST.

2.7 All money sums mentioned in this agreement are calculated inclusive of GST.

2.8 These terms and conditions apply to all work on the Project. They prevail over any terms proposed by the Client.

2.9 This agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.

3 Basis of Contract

3.1 In entering into this contract the Client has not relied on any representation or information from any source except the definition and explanation of the services given on the writer’s Website.

3.2 For the Price and subject to the terms of this agreement the Writer hereby undertakes to complete the Project so as to satisfy the Proposal(s).

3.3 So far as the Writer allows the use of his Intellectual Property, he grants a licence to the Client for 80 years, limited to the terms set out in this agreement.

4 Representative Liaison

4.1 With effect from today the Writer and the Client shall each nominate a representative who shall be authorised to make decisions relating to the Project and who shall be responsible for:

4.1.1  arranging meetings at mutually agreed times to review the progress of the Project;

4.1.2  providing all information and documentation reasonably required by the other of them to enable completion of the Project.

4.2 The Writer's representative shall provide a tracking report detailing the progress of the Project which will be made available to the Client’s representative.

5 Project Management Procedure

5.1 The Writer shall prepare the Proposal and the Client shall provide to the Writer all information and other documents reasonably requested by the Writer for this purpose.

5.2 The Writer shall use all reasonable endeavours to complete the preparation of the Proposal by the mutually agreed date and submit it to the Client.

5.3 The Client shall use all reasonable endeavours to complete the preparation of the Content by the date set out in the Timetable or as soon thereafter as is possible and submit it to the Writer for inclusion in the Website.

5.4 The Client shall within 30 days of receipt of the Proposal notify the Writer of either:

5.4.1 his approval as drawn or

5.4.2 his comments and/or requests for amendment as he shall reasonably judge appropriate.

5.5 The Writer shall take account of all reasonable comments and/or requests for amendment received from the Client and shall incorporate them in a revised version of the Proposal to be prepared and delivered to the Client as soon as is reasonably possible.

5.6 The process described above shall be repeated until the Client has approved the Proposal in writing.

5.7 If the Client requires an amendment to the Proposal to take account of any application function or performance criteria not previously specified then the Writer shall be entitled to make such revision to the Proposal as he shall in the circumstances judge to be reasonably necessary.

5.8 Where a timetable has been included in the Proposal, The Writer and the Client agree to use all reasonable endeavours to complete the process by the acceptance date set out in the Proposal or as soon after as is possible.

5.9 The Writer will write the Website in accordance with the milestones set out in the Proposal or as soon thereafter as is possible.

5.10 Where Website Documentation has been included in the Proposal, it shall be updated from time to time so that it provides a precise technical record of all features of the completed Website.

5.11 The Client will use all reasonable endeavours to complete arrangements in respect of such of the Excluded Matters as are necessary to satisfy the pre-requisite requirements of this contract.

5.12 Delivery shall be effected for the purpose of this agreement only when the Website is complete and tested and fully operational on the server of the Website Host.

6 Content of the Proposal document

The Proposal may include (among other things)

6.1 a list of browsers with which the Website will be compatible;

6.2 the Client’s functional requirements for the Website;

6.3 the Clients quantitative requirements for the Website;

6.4 the software languages, applications and adaptations proposed to be used in the construction of the Website;

6.5 the bought-in software and plug-in sub-systems proposed to be used in the construction of the Website together with priced recommendations for sourcing such products;

6.6 the layout and content of the Reports;

6.7 any necessary administrator control panel or system;

6.8 a list of password protected files, specifying in each case, the function of the file, the password at the start and the method of changing the password;

6.9 any necessary communications systems required with details of how they will operate;

6.10 details of each commonly accepted standard which will be attained in respect of work on the Project, including those of the International Organisation for Standardisation.

7 Text Modifications

7.1 The Writer shall notify the Client when the Website is substantially complete as to the text on the pages (even if the dynamic features are not yet complete) and shall provide open access (uncontrolled by any password or qualification) to the Client to all of the pages including error messages and other secondary pages.

7.2 The Client shall provide to the Writer a comprehensive list of text modifications in respect to all of the pages.

7.3 The Writer shall make the modifications requested and shall charge the Client at the rate set out in The Proposal for consulting, programming, HTML and web page construction.

8 Variations

8.1 The Client shall be entitled at any time prior to completion of the Project to request in writing the Writer to modify the design or functionality of the Website.

8.2 The Client shall provide the Writer with full particulars of any requested modification and such further information as the Writer shall reasonably require.

8.3 The Writer shall inform the Client in writing whether such modification is technically feasible and shall inform the Client of:

8.3.1 the estimated number of additional hours of work and estimated additional cost;

8.3.2 any necessary alteration to the Timetable as caused by the proposed modifications;

8.3.3 an approval and the payments required prior to commencing the proposed modifications.

8.4 If the Client elects to proceed with the modification within 5 days of receipt of such information then the Timetable shall be amended in the manner indicated by the Writer.

8.5 If the modification is requested after the Website has been substantially constructed the Writer may decline to accept the additional work until after completion of and payment for the Project, such additional work becoming the subject of a separate contract.

8.6 If the Writer modifies the whole or any part of the Website in accordance with this paragraph he shall make all appropriate related modifications to the Proposal so that the document accurately reflects the finished version of the Website.

9 Testing and Acceptance

9.1 The testing may take place either on a test/staging site or a site published to the World.

9.2 The Writer shall test the functioning of the Website.

9.3 If any fault or “bug” is found the Writer shall undertake such further work as is necessary until the testing procedure is satisfied as to 100% where possible.

9.4 When the test procedure is completed with 100% compliance where possible, the Writer shall inform the Client and the Client shall test the Website.

9.5 Within 14 business days, the Client shall inform the Writer of any deficiencies in the operation of the Website and in the absence of any such notification, the Client is deemed to have accepted the Website.

9.6 The Project is complete after:

9.6.1 the testing procedure has met client acceptance for 100% efficiency where possible;

9.6.2 the Website is published on the server of the Website Host;

9.6.3 updated versions of the Proposal and the Website Documentation have been handed to the Client in soft copy (where the Proposal includes a hand over of Website Documentation);

10 Price and Payment

10.1 The Client shall pay the Price for each Phase in accordance with the Proposal.

10.2 The Writer shall during the currency of this agreement maintain accurate and up-to-date records of the time spent by the staff upon the Project.

10.3 Each invoice submitted to the Client for time charged will contain a breakdown in respect of the time spent by the staff and the materials and equipment used and the amounts attributable to each.

10.4 The Writer shall be entitled upon not less than 30 days notice to the Client and not more than once in every 12 months during the currency of this agreement to increase the rates for work charged by the hour. Such increase shall be at the Writer's sole discretion.

10.5 The Writer reserves the right to charge the Client interest in respect of the late payment of any sums due under this agreement (both before and after judgment) at the rate of 5% above the cash rate from time to time of the Reserve Bank of Australia from the due date until receipt of payment.

10.6 The Client will make payment of money due within 7 days of receipt of each invoice.

11 Demonstration and Training

11.1 Immediately upon publication of the Website, the Writer may provide an explanation, demonstration and training in the operation of the Website for such staff as the Client shall direct and in a format agreed by the Client as per The Proposal.

11.2 The Writer shall provide such further training as the Client may request from time to time at the hourly rate set out in The Proposal. Such training shall be provided by a person fully conversant with the Website.

12 Exclusions from contract

The Excluded Matters are:

12.1 Registration of necessary domain names;

12.2 Arrangement of merchant server banking and payment service provider facilities;

12.3 Contracting for web hosting services and the provision of appropriate firewalls;

12.4 Supply new or change existing Client e-mail message system;

12.5 Purchase of any necessary computer hardware and software;

12.6 Search engine optimisation beyond that specified in The Proposal.

13 Confidentiality

13.1 The parties are aware that in the course of the Project they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.

13.2 The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Project that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.

13.3 For the purposes of the Client’s above undertaking, the information shall be deemed to include all information (written or oral) concerning the Proposal(s).

13.4 Each of the Writer and the Client hereby undertakes to the other to make all relevant employees’ agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employee’s agents and sub-contractors with these provisions.

13.5 Each of the Writer and the Client hereby undertakes to the other that for the period of 12 months following completion of the Project they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment.

13.6 The provisions of the last previous subparagraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.

14 Third Party Software Rights

14.1 If the Writer incorporates or embeds third party software products in the Project then such products will so far as possible be properly licensed to the Client, with full and appropriate legal documentary evidence in support and any money payable to a third party shall be paid by the Writer. Any license fees payable by the Client to any third party for software incorporated in the Website but not previously used by the Client shall be paid by the Writer unless included in the Price specification set out in The Proposal.

14.2 Insofar as the terms of business of a third party seller of software do not permit the above arrangement, then the Client shall himself buy the software concerned whereupon the Writer shall have no obligation in respect of the software except to warrant that it functions as a part of the Website.

14.3 Insofar as it is impractical to follow the procedure set out above, then the Writer shall be deemed to be the agent of the Clients for the purpose of buying such software. In this event, the Writer will advise the seller by e-mail, with a copy to the Client that the software has been purchased for use by the Client. The Writer will provide full contact details to the seller. It shall be the responsibility of the Client to retain the copy of the e-mail message by the Writer.

15 Intellectual Property Ownership

Software code and images owned by a third party are not affected by this agreement. During and after completion of the contract and unless otherwise specified in this agreement ownership of other intellectual property used in the assignment or arising out of it, shall be as follows:

15.1 Website concepts belong to the Writer.

15.2 Website designs used in the Website belong to the Client.

15.3 Website designs not used belong to the Writer.

15.4 Graphic images provided by the Writer belong to the Client unless the Writer expressly states that ownership is retained by him.

15.5 Software code written by the Writer prior to the date of this agreement and incorporated in the Website belongs to the Writer.

15.6 Code written specifically for the Website belongs to the Client.

15.7 Software elements being components previously developed by the Writer belong to him.

15.8 The Writer now grants an exclusive license to the Client for all items listed above and owned by them, for use in connection with any Website the Client might own or use for a period of 99 years. The Client may not assign this licence except by way of sale or transfer of the whole of the Website.

16 Intellectual Property Rights Indemnity By Client

The Client hereby agrees to indemnify the Writer against all claims and costs arising:

16.1 in any connection with the Content supplied by the Client;

16.2 out of any failure by the Client to comply with any law;

16.3 from a breach by the Client of this agreement;

17 Disclaimers and Limitation of Liability

17.1 The law differs from one country to another. This paragraph applies so far as the applicable law allows.

17.2 All implied conditions, warranties and terms are excluded from this agreement.

17.3 The Writer knows nothing about the business of the Client. Accordingly, he is not responsible for:

17.3.1 the instructions given by the Client in connection with the Project or any issue that arises as a result of any work done by the Writer as instructed by the Client.

17.3.2 the functionality or profitability of the Website as a business;

17.3.3 the text or graphics or other content on the Website;

17.3.4 compliance of the Website with any law or code of practice.

17.4 This paragraph (and any other paragraph which excludes or restricts the liability of the Writer) also applies to the directors, officers, employees, subcontractors, agents and affiliated companies of the Writer as well as to the Writer.

17.5 The following provisions set out the Writer’s entire liability (including any liability for the acts and omissions of its employees) to the Client in respect of:

17.5.1 any breach of his contractual obligations arising under this agreement; and

17.5.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement

And the Client’s attention is drawn to these provisions.

17.6 Any act or omission on the part of the Writer, falling within this paragraph shall be known as an ‘Event of Default’.

17.7 The Writer’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total price paid by the Client for this Project.

17.8 The Writer shall not be liable to the Client in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Writer had been advised of the possibility of the Client incurring the same.

17.9 If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.

17.10 The Client hereby agrees to give the Writer not less than 30 days in which to remedy any Event of Default hereunder.

17.11 The Writer shall have no liability to the Client in respect of any Event of Default unless the Client shall have served notice of it on the Writer within 90 days of the date he became aware of the circumstances giving rise to the Event of Default or the date when he ought reasonably to have become so aware.

17.12 Nothing in this paragraph shall confer any right or remedy upon the Client to which he would not otherwise be legally entitled.

17.13 The Writer shall not be liable to the Client for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.

18 Termination

This agreement may be terminated:

18.1 immediately by the Writer if the Client fails to pay any sum due within 90 days of the date of submission of an invoice;

18.2 immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it;

18.3 immediately by either party if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction);

18.4 Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.

19 Force Majeure

Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including:

 - acts of any governmental body

 - war

 - insurrection

 - sabotage

 - armed conflict

 - embargo

 - fire

 - flood

 - strike or other labor disturbance

 - interruption of or delay in transportation

 - availability of or interruption or delay in telecommunications or third party services

 - virus attacks or hackers

 - failure of third party software (including, without limitation, e-commerce software, payment gateways, chat, statistics or free scripts)

 - inability to obtain raw materials, supplies, or power used in or equipment

 - failure of access circuits to the Digital Catalyst's Network or it's upstream providers

 - scheduled maintenance and emergency maintenance and upgrades

 - DNS issues outside the direct control of Digital Catalyst

 - issues with FTP, POP, IMAP, MS Exchange or SMTP customer access

 - false SLA breaches reported as a result of outages or errors of any Digital Catalyst's measurement system;

 - customer's acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, PHP, ASP.Net, etc), any negligence, willful misconduct, or use of the Services in breach of Digital Catalyst's Terms of Service and Acceptable Use Policy

 - e-mail or webmail delivery and transmission

 - DNS (Domain Name Server) Propagation

 - outages elsewhere on the Internet that hinder access to your account. Digital Catalyst is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it. Digital Catalyst will guarantee only those areas considered under the control of Digital Catalyst

19.1 Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.

19.2 If a default due to force majeure continues for more than 4 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.

20 Miscellaneous Matters

20.1 The schedules, if any, to this agreement are part of the agreement and have the same force and effect.

20.2 No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or his authorised representative.

20.3 If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.

20.4 Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.

20.5 Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.

20.6 No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.

20.7 The Client agrees that the Writer may disclose his information, including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority who makes a written request without further consent or notification to him.

20.8 Any communication to be served on either of the Parties by the other shall be delivered by hand or sent by first class post or recorded delivery or by fax or by e-mail.

It shall be deemed to have been delivered:

  • if delivered by hand: on the day of delivery;
  • if sent by post to the correct address: within 72 hours of posting;
  • If sent by fax to the correct number: within 24 hours;
  • If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.

20.9 In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.

20.10 This agreement does not give any right to any third party, except that any provision in this agreement which excludes or restricts the liability of the Writer’s directors, officers, employees, subcontractors, agents and affiliated companies, may be enforced under that act.

20.11 Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control.

20.12 In the event of any conflict between any term of this agreement and the provisions of the articles of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.

20.13 The validity, construction and performance of this agreement shall be governed by laws of the State of NSW. Any dispute arising in connection with this agreement shall be subject to the exclusive jurisdiction of the State of NSW and Australian courts.

 

Effective Date: 
Monday, July 1, 2013