- Snapfrozen offers to undertake the Project specified in the Project Proposal and Estimate and the parties agree that the Project and the relationship between the parties is governed by the terms and conditions contained herein.
- The Project Proposal and Estimate is valid for a period of thirty (30) days commencing the day after Snapfrozen gives the Agreement to the Customer.
- Unless agreed by the Customer in its sole discretion, Snapfrozen agrees and undertakes not to use any pre-existing templates, documentation or data in the creation of the Project.
- Customer’s Obligations and Acknowledgements
- The Customer agrees:
- Make themselves available as reasonably required by Snapfrozen to enable the Project to be completed and implemented in a timely and effective manner;
- To treat Snapfrozen, its employees and agents with goodwill, and in a courteous and respectful manner and agrees to refrain from using any abusive, defamatory or otherwise offensive language while in communication with Snapfrozen;
- Provide Snapfrozen with all information, images, facilities and services reasonably required by Snapfrozen to enable Snapfrozen to undertake the Project effectively and agrees to grant Snapfrozen access to the Customers computer equipment and telecommunications where reasonably required;
- Ensure that all material provided to Snapfrozen conforms to all industry codes and standards, applicable laws including but not limited to advertising, trade practices, industry, copyright and intellectual property;
- Meet the Payment Terms specified in the Project Proposal and Estimate within 14 days of receiving an invoice from Snapfrozen;
- The Customer agrees and acknowledges:
- That figures provided in the Project Proposal and Estimate are estimates only and that the actual cost of the project may exceed that stated therein.
- That the Project Proposal and Estimate do not include costs of any modifications and/or changes to the Core Development Services or Additional Services. Where the Customer modifies or adds to the Core Development Services or Additional Services, Snapfrozen reserves the right to charge fees any service or feature not contained in the original Project Proposal and Estimate.
- That from the time of Launch (If the project includes a software or hardware solution), Snapfrozen is not liable and will not be responsible for Backing Up Data contained in the Developed Product, and that Backing Up the Developed Product post Launch is the sole responsibility of the Customer and Snapfrozen shall not be held liable for any losses occasioned to the Customer by failure to Backup Data or the Developed Product;
- That in the event the Customer fails to follow the recommendations and advice of Snapfrozen, that the Customer is solely liable for the any losses resulting from the failure to follow Snapfrozen advice and/or recommendations;
- That failure to take out Maintenance may, after Launch, result in the Developed Product becoming hacked or otherwise improperly accessed, and that this is the sole responsibility and liability of the customer.
- That the government may enact laws and levy taxes and tariffs affecting Internet Electronic Commerce. The Customer agrees that it is solely responsible for complying with such laws and taxes.
- Core Development Services, Additional Services and Modifications to Services
- Under the terms of this Agreement, Snapfrozen agrees to provide the Customer the Core Development Services and Additional Services for the Project Type specified in the Project Proposal and Estimate.
- If, after signing this agreement, the Customer wishes to reduce or otherwise modify the Project Type, Core Development Service or Additional Service, the Customer shall notify Snapfrozen of its intent to modify requirements following which Snapfrozen shall immediately suspend work on the Project.
- Within 7 days of advising Snapfrozen of its intent to modify requirements, the Customer shall submit to Snapfrozen a written document describing the proposed modifications and Snapfrozen shall within a reasonable time submit to the Customer an Updated Development Proposal and Estimate.
- Notwithstanding any modification made in accordance with clause 3 (c), the Customer remains liable to pay the full estimated amount for the Services as if the modification never occurred in addition to any other fees detailed in the Updated Development Proposal and Estimate. Snapfrozen at its sole discretion, may adjust or amend costs payable under the original Development Proposal and Estimate.
- After the work has been commenced, modification to the Project Type or any of the Core Development Service or Additional Services will be treated as a change request. Snapfrozen reserve the right to charge for such modifications and for any additional work arising as a result of such changes.
- Estimated Milestone Dates And Payment Terms
- Costs and prices contained in the Project Proposal and Estimate are estimate only and are subject to change.
- The Customer agrees that Snapfrozen is under no obligation to perform any work until the initial 50% deposit is received from the Customer and that Snapfrozen may cease or suspend work where payments are not paid in accordance with the Progress Payment Terms;
- New services are only provisioned with payment of invoiced amounts, unless otherwise arranged and agreed in writing.
- We send three overdue invoice reminders. Upon the 3rd reminder, we reserve the right to suspend the account and stop all active services without any further notice.
- Upon payment, account unsuspension will be completed on a best effort basis, within our regular support terms.
- If the client has exceeded suspension time and needs their account restored, this will incur a $75 restore fee. This service is provided on a best effort basis, within our regular support terms.
(c) Estimated Launch Date: Snapfrozen aims to perform the Services in an efficient and timely manner. The Customer acknowledges that the Estimated Launch Date specified out in the Project Proposal and Estimate is an estimate only and is subject to change. The factors that affect the Estimated Launch Date include, but are not limited to whether:
- The Customer promptly and efficiently responds to requests for information or clarification of specifications;
- The Customer modifies, deletes or substitutes the Core Development Services or Additional Services and whether work already undertaken by Snapfrozen will need to be revised in light of the modification, deletion or substitution and the complexity of such modifications, deletions or substitutions;
- The level of cooperation the Customer provides Snapfrozen, and the level of cooperation of other persons with whom Snapfrozen deals with on behalf of the Customer (including but not limited to the Customer’s staff, agents or Third Party Service providers);
- Situations beyond our control.
(d) Where delay in Launch is due to Customer fault, Snapfrozen reserves the right to charge overtime rates.
(e) Project Completion – Subject to the terms of the Core Development Services will be deemed complete when Snapfrozen has Launched the Developed Product and the Customer has signed a Project Completion Acknowledgement. The Customer acknowledges and agrees that:
(i) Within 14 days of Launch, the Customer will review the Developed Product and conduct their own tests to check if they are satisfied that the Developed Product meets the Project Scope and if so satisfied, return to Snapfrozen a signed Project Completion Acknowledgement.
(ii) Where the Customer does not undertake its own review of the Developed Product within the specified time, or fails to return the Project Completion Acknowledgement, the Customer will on the 14th day after Launch be deemed to have accepted that the Developed Product accords with the Project Scope and that the Core Development Service is complete.
- Maintenance and Training
- Where the Customer elects for Training to be provided, and unless otherwise agreed between the parties, Snapfrozen shall provide training within 14 days of receiving full and final payment. Where, in the sole opinion of Snapfrozen, Snapfrozen considers the Customer to have become abusive, defamatory or otherwise offensive towards Snapfrozen, its employees or agents during training, the Customer acknowledges and agrees that Snapfrozen may suspend training and notify management to discuss and implement a resolution to the issue. In such instance the Customer shall forfeit all fees paid for training under this agreement if no resolution can be reached in a reasonable time, and shall have no recourse against Snapfrozen for losses arising as a result. Where the Customer elects for Maintenance Services to be provided, it shall be in accordance with the Snapfrozen Maintenance Service Agreement.
- Intellectual Property Rights
- Subject to sub-clause 6 (b) Intellectual Property rights in the Developed Product shall vest in the Customer when the full and final cleared payment for the Core Services is received by Snapfrozen.
- Notwithstanding sub-clause 6 (a), the Customer acknowledges that there is no assignment of intellectual property rights in any Pre-Existing Material which is incorporated into or which has been used in the course of the Project vest absolutely and always with Snapfrozen.
- Snapfrozen undertakes to obtain all necessary permissions, authorisations and licenses and consents in relation to the use and incorporation of third party materials in the Project (excluding that material provided by the Customer);
- The Customer represents to Snapfrozen and guarantees that any element of text, graphic, photo, designs, sound, trademark or other artwork furnished to Snapfrozen for inclusion in the Project are owned by the Customer or that the Customer has permission from the rightful owner to use each of these elements, will hold harmless and indemnify Snapfrozen and its subcontractors from any claim, suit, arising from the use of such elements furnished on Snapfrozen.
- Where the infringement of Intellectual Property rights is determined or agreed to be caused either directly or indirectly by the actions of the Customer, Snapfrozen may at its discretion agree to assist the Customer in rectifying the infringement. The Customer agrees in such event to pay to Snapfrozen, Snapfrozen cost and expenses incurred in attending to the above.
- Design/Development Credit
- The Customer agrees that Snapfrozen may, upon completion of the project, include a small credit on the Customers Developed Product, which is usually located at the bottom and typically consists of a small line of text being a URL hyper text link or small logo URL image link to Snapfrozen Website for promotional purposes only. The Customer also agrees to promptly remove the same on request.
- The Customer acknowledges that any material placed on the Customer’s Developed Product in accordance with clause 7 (a) remains at all times the intellectual property of Snapfrozen.
- Liability and Indemnity
- Snapfrozen makes no warranty of any kind, whether expressed or implied, with regard to any Third Party Product suitability for use on the Developed Product.
- Snapfrozen accepts no liability whatsoever for any edits or changes made to the Developed Product by the Customer or any third party acting under the direction of the Customer (henceforth “unilateral changes”) or arising from the Customer’s failure to Backup Data and/or the Developed Product after Launch.
- Subject to the requirements of the Australian Consumer Law, except in relation to liability for personal injury (including death), property damage (excluding loss of data) or any infringement of confidentiality or intellectual property rights, the liability of Snapfrozen in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of Snapfrozen in connection with its obligations under this agreement will not exceed the amount paid by the Customer under the Project Proposal and Estimate, even if Snapfrozen has been advised by the Customer as to the possibility of losses being incurred. Except in regards to instances where Snapfrozen’s insurance for Professional indemnity and Public Liability would be applicable, which is then limited to our Contractual Liability Sublimit amount of $250,000.
- The Customer hereby unconditionally and irrevocably accepts all risks (whether foreseen or unforseen) associated with or arising from the Customer’s failure to meet its obligations under this agreement (including but not limited to those relating to Backup), the publication of and code in the Developed Product, any unilateral changes and the use of Third Party Products, and assumes responsibility for all losses, costs, and damages the Customer may incur as a result whether or not losses, costs or damages are caused by the Customer’s own action or inaction, the action or inaction of others or the negligence or otherwise of Snapfrozen, or its directors, staff, associates or contractors. The Customer hereby releases, discharges and covenants not to sue Snapfrozen, its directors, staff, associates and contractors for any liability or loss caused or alleged to be caused either directly or indirectly from publication of or code in the Developed Product, loss of Data due to failure to Backup, unilateral changes and the use of Third Party Products.
- To the extent permitted by law, the Customer agrees that it shall defend, indemnify, save and hold Snapfrozen harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Project. This includes liabilities asserted against the Snapfrozen, it’s subcontractors, it’s agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Customer, its agents, employee or assigns.
- Breach and Termination
Either party may terminate this Agreement with thirty (30) days prior notice if a party:
- Has a receiver, manager, receiver and manager, administrator, liquidator (including provisional liquidator), statutory manager or similar person appointed (whether voluntarily, involuntarily, by a Court or by any other entity) concerning any of its property, assets or business affairs; or
- Commits an Act of Bankruptcy or has a petition for his or her bankruptcy lodged with the relevant authorities, voluntarily or otherwise; or
- Assigns or disposes of any of its property, assets or business affairs for the benefit of its creditors or otherwise disposes of a substantial part of its assets, operations or business, or stops carrying on business.
- In addition to the rights of termination set out in clause 9 (a) Snapfrozen may terminate this Agreement with seven (7) days prior notice where the Customer is in breach of any of is obligations under this Agreement and fails to remedy the breach within that time period
- If the Customer terminates this agreement under clause 9 (a) the plus any additional charges incurred in accordance with this Agreement becomes immediately due and payable
- Where the Project is terminated by any party prior to Launch, Intellectual Property rights to all work developed up to the date of termination shall remain absolutely and forevermore with Snapfrozen.
- Third Party Property
- Rights to any Third Party Property used by Snapfrozen in the development of the Project are subject to that software’s own license terms and conditions of use. Snapfrozen is not required to supply these terms and conditions for the customers perusal and agreement, as their existence and updates are out of Snapfrozen control.
- The client must recognize that at times there may be unforeseen circumstances that will delay the development process, particularly with reference to the integration of third party software. We will try our best to complete the project as agreed in the proposal. As long as it is within a reasonable period, the client agrees not to penalize us for any genuine delay, when every effort to keep the project on the proposed schedule is taken.
- Right of Refusal
Snapfrozen will not include in its designs, any text, images, audio or other content and/or data which it may deem to be immoral, offensive, defamatory, obscene and/or illegal. Snapfrozen reserves the right to refuse to include submitted material without giving reason. Any designs, text, images, audio, data and/or content that Snapfrozen does include, Snapfrozen does so in good faith, and should it become aware that it is contrary to any of the terms and conditions of this Agreement, the Customer is obliged to allow Snapfrozen to remove the contravention without hindrance and/or penalty. Snapfrozen will not be held responsible for any such data and/or content, the Customer indemnifies Snapfrozen for any claim brought against it by any third party.
- Faults on Developed Product Post Launch
- Where Services supplied under this agreement cost less than $40, 000, our Services come with guarantees that cannot be excluded under the Australian Consumer Law and faults on Developed Product post Launch shall be remedied in accordance with those requirements;
- Where the Services supplied are over $40,000, the Customer agrees that the Services are not of the nature ordinarily acquired for domestic, household or personal use or consumption, and the provisions of clause 12 (c) – (d) apply.
- The Snapfrozen 90 Day Warranty (“Warranty”) applies to Services of the nature specified in clause 12 (b). The Warranty commences the day following Launch and limited to the Core Development Services that have gone through the system testing phase. Ad-hoc, micro-improvements made may incur additional charges if they were not a part of initial core functionalities. The Warranty covers programming errors reported to Snapfrozen within the 90 Day Warranty Period, but does not cover errors arising from or associated with server limitations, the use of Third Party Products or changes made to the Developed Product by the client, their employees or agents or resulting from the Customer’s failure to Backup Data or the Developed Product. Programming errors reported within the Warranty Period will be fixed at no additional charge to the Customer. The Customer acknowledges that Snapfrozen will charge service fees for any errors arising or reported outside the Warranty Period or that arise in relation to the use of Third Party Products.
(d) The Customer will forfeit the right to warranty under clause 12 (c) if any third party for whatever reason accesses the Developed Product or the codes or where any payment to Snapfrozen is outstanding at the time the fault is discovered.
- Force Majeure
Neither party will be liable for or will be considered to be in breach of or in default under this agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure even occurs, the affected Party will give prompt written notice to the other party and will use commercially reasonable efforts to minimise the impact of the event.
The parties agree that the provisions of this agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
- Severability and Waiver
(a) If any term, clause or provision hereof is held invalid or unenforceable by a Court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other terms, clause or provision and such invalid term, clause or provision will be severed from this agreement.
(b) No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent by registered mail to the last known business address of the recipient or by email marked “Attention Director” and sent to the email address agreed between the parties from time to time.
Until project completion, the Customer may not assign this agreement or the rights and obligations there under to any third party without the express written approval of Snapfrozen. Snapfrozen reserves the right to assign sub-contractors as needed to this Project to ensure on-time completion.
This Agreement may not be varied except by agreement in writing signed by both parties.
- Entire Agreement
- This agreement constitutes the entire understanding of the parties and revokes and supersedes all prior agreements between the parties and is intended to be the final.
- Subject to rights existing under relevant legislation, any condition, representation or warranty which would otherwise be implied in this agreement is hereby excluded.
- Relationship of Parties
In Snapfrozen providing its services under this agreement it is deemed that it does so in the capacity of an independent contractor and nothing shall constitute an arrangement of employment, joint venture, or partnership.
- Place of Contract of Contract and Governing Law
- The parties agree that the place of contract is Coffs Harbour, NSW, 2450 Australia.
- This agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the Courts and Tribunals of that State and that the forum shall be situated closest to the place of contract.
(a) In this Agreement, unless otherwise stated:
|‘Agreement’||means this document and schedule.|
|‘Additional Services’||means Training or Maintenance Services selected in the Project Proposal and Estimate;|
|‘Backed up’||means data being stored in another location than that of the primary server where the website operates from, that can be retrieved in its entirety.|
|‘Core Development Service’||means the Services specified in Item 1 of the the Project Proposal and Estimate;|
|“Weekly Payment Installment”||means a Project that is conducted over the Term and during which the Core Development Services are provided on an ongoing monthly basis as indicated in the Project Proposal and Estimate;|
|‘Customer’||means the person or entity specified Project Proposal and Estimate;|
|‘Data’||means information stored within the database component of the project as the customers operational information as created and managed by the customer via the website software;|
|‘Developed Product’||means the resultant web product(s) developed as a result of Snapfrozen providing the Core Development Services|
|‘Developed Product Training and Maintenance’||means services provided to show the customer how to use the provided product and services to keep running, such as upgrades and other fixes that may be required to ensure the proper operation of the product;|
|‘Estimated Launch Date’||means the date upon which the Developed Product(s) are made live on the internet for usage by the and their intended users;|
|‘Launch’||means the actual date upon which the Developed Product(s) are make live on the internet;|
|‘Intellectual Property’||Means copyright, trademark, design, patent, semiconductor or circuit layout rights relevant to, inter alia: |
|‘Maintenance Services’||Has the meaning set out in the Snapfrozen Maintenance Agreement;|
|‘Milestone’||includes Project Commencement Date, Progress Payments and Launch Dates as set out in the Project Proposal and Estimate;|
|‘Progress Payment Terms”||means the terms of payment detailed in item 3.1 of the Project Proposal and Estimate;|
|‘Payment Terms’||Includes Progress Payment Terms and Weekly Payment Terms;|
|‘Project Commencement Date’||Means the date specified in item 3 of the Project Proposal and Estimate, unless otherwise agreed between the parties;|
|‘Project Completion Acknowledgement’||means a document of that name issued by Snapfrozen to the Customer following Launch;|
|‘Project Scope’||means the entire the totality of the Core Development Services and Additional Services provided to the Customer, and includes other specifications and functionalities as agreed in writing between the parties from time to time;|
|‘Pre-Existing Material’||includes but is not limited to Snapfrozen software, documentation, templates, codes and data existing prior to the Commencement Date;|
|‘Services’||includes any Core Development Service or Additional Service specified in the Project Proposal and Estimate or as otherwise agreed between the parties in writing;|
|‘Third Party Products’||but is not limited third party equipment, hardware, content and software (including upgrades of all types whether foreseeable or unforeseeable and open source CMS), servers and plugins other than those managed by Snapfrozen;|
|‘Total Estimated Cost’||means the figure marked as “Total Estimated Cost” in either item 3.1 or 3.2 of the Project Proposal and Estimate;|
|‘Updated Development Proposal and Estimate’||means a subsequent development proposal and estimate created by Snapfrozen and given to the Customer after the Commencement Date and as a result of the Customer modifying or amending the Services;|
|‘Project’||means the entire works and services as set out in the Project Proposal and Estimate;|
|‘Project Proposal and Estimate’||means the Schedule to this Agreement.|
|‘Weekly Payment Terms”||means the terms of payment detailed in item 3.2 of the Project Proposal and Estimate;|
(b) In this Agreement:
- words importing the singular include the plural and vice versa;
- words importing one gender include the other genders;
- a reference to any Party or other person includes that person’s successors and permitted assigns;
- a reference to a statute, ordinance or other legislation includes any amendment, replacement or re-enactment thereof for the time being in force and includes all regulations, by-laws and statutory instruments made thereunder;
- a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
- a reference to a recital, clause or schedule is a reference to a recital, clause or schedule of this agreement;
- a reference to writing includes all means of reproducing words in a tangible and permanently visible form;
- a reference to time is a reference to time in the State of NSW Australia;
- a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole proprietorship, government or governmental subdivision or agency, association, cooperative and any other legal or commercial entity or undertaking;
- where a Party comprises two or more persons any agreement or obligation to be performed or observed by that Party binds those persons jointly and each of them severally, and a reference to that Party is deemed to include a reference to any one or more of those persons;
- the headings in this agreement are not to affect its interpretation;
- the recitals and the schedules form part of this agreement; and
- a reference to “dollar” or “$” is a reference to Australian currency.