Terms Of Service

Terms and Conditions of Service for Website Design & Development, and Ongoing Website Hosting Agreement

Apex Designs Digital Services ABN 17 729 721 185 (Apex)

RECITALS:

  1. Apex undertakes the design, development and integration of websites.
  2. The Customer with Apex will jointly develop the Website Specification.
  3. The Customer wishes to engage Apex to develop the Website in accordance with the Web Site Specification and otherwise on the terms of this Agreement.

THE PARTIES COVENANT AND DECLARE AS FOLLOWS:

WEBSITE DEVELOPMENT TERMS

1. DEFINITIONS & INTERPRETATION

1.1 Definitions

“Acceptance Tests” means the tests performed by the Customer on the beta version of the Web Site testing the Functional Specifications of the Web Site;

“Agreement” means this deed, (including the recitals, schedules, appendices and exhibits to it), as it may later be amended or supplemented by the parties in writing;

“Agreement Date” means the date specified or date of payment recieved;

“Authorised Representative” means:

(a) in respect of a party which is a corporation:

  1. i) a company secretary or director or any officer of the corporation whose title or office includes the words “manager” or “director”; or
  2. ii) a person acting with the title or in the office of manager or director; and

(b) in respect of each party, a solicitor of that party or a person nominated by Notice to the other party as an authorised representative;

“Claim” means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;

“Commencement Date” means the date so specified in the Schedule;

“Confidential Information” shall include but not be limited to:

(a) the specifications, coding, listings or features of the Web Site;

(b) information in relation to the internal organisation and architecture of the Web Site including, without limitation, the operation and functioning of the Apex IP;

(c) the trade secrets and proprietary information relating to the business affairs, marketing plans, business plans and finances of either the Customer or Apex; or

(d) any other information exchanged between the parties in confidence and designated as confidential information in the course of developing the Website.

The Confidential Information does not include any information that:

(a) is or becomes generally known within the territory without breach of the terms of this Agreement or any other non-disclosure agreement;

(b) is required to be disclosed pursuant to the order or court or agency or government entity having jurisdiction over the parties; or

(c) is independently developed by Apex or is acquired by Apex from a third party through no act of wrong doing or breach of any nondisclosure agreement by Apex or such third party;

“Content Management System” or “CMS” means the proprietary system developed and owned by Apex for the management of user content on the Web Site by the Customer after the completion Development Services;

“Customer Materials” includes all the artwork, graphics, logos, symbols, information, documents, audio, customer list, marketing plans, drawings and any other materials supplied pursuant to this Agreement including the Customer’s Confidential Information;

“Development Fee” means the total of the Milestone Payments payable by the Customer to Apex for the Services, as specified in the Schedule;

“Development Services” means the design, development, integration and testing of the Web Site in accordance with the Milestones and pursuant to this Agreement, using the methodology and development tools described in the Web Site Specifications;

“Functional Specifications” means the specifications prepared and required by the Customer which form part of the Web Site Specifications;

“GST” means:

(a) the same as in the GST Law;

(b) any other goods and Services tax, or any tax applying to this agreement in a similar way; and

(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

“GST Law” means the same as ‘GST law’ in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights;

“Internet” means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;

“Milestone” means a specified date in the completion of part of the Web Site at which certain requisite works are to be completed in accordance with the Web Site Specification;

“Milestone Date” means the date specified as such in the Web Site Specification for the completion of a Milestone;

“Milestone Deposit” means any deposit which is required to be paid by the Customer to Apex on the signing of this Agreement which payment forms part of the Milestone Payments;

“Milestone Payment” means the amount to be paid on a Milestone Date as specified in the Web Site Specification and the aggregate of the Milestone Payments is the Development Fee;

“Notice” means a written notice, consent, approval, direction, order or other communication;

“Obligation” means any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;

“Apex IP” means the Intellectual Property Rights of Apex in the Content Management System which, at the completion of the Development Services, will form part of the Web Site;

“Page Layout” means the layout, architecture, site map design and Web Site Functionality of the whole or part of any home page or web page created or developed by Apex;

“Moral Right” means:

(a) a right of attribution of authorship; or

(b) a right not to have authorship falsely attributed; or

(c) a right of integrity of authorship; or

(d) a right of a similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement;

“Right” includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.

“Schedule” means a Schedule to this agreement;

“Third Party Materials” means textual, graphical, audio or like materials, together with any software, which is incorporated into the Web Site;

“User” means a person other than the parties who seeks access to the Web Site over the Internet;

“User Documentation” means any operating manuals, user instructions, technical literature and any other materials in an eye readable form prepared by Apex for use in the installation, integration and application of the Web Site;

“Web Site” means the location accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User interface;

“Web Site Modification” means a modification to the Web Site Specification requested by the Customer after Apex has commenced the Development Services;

“Web Site Modification Response” means the response by Apex to implement a Web Site Modification;

“Web Site Modification Form” means the form the Customer must complete and deliver to Apex for the purposes of requesting a Web Site Modification;

“Web Site Specification” means that overall specification of the Web Site including the Page Layout, form, content, design, layout and function to be written by Apex for the Customer in accordance with this Agreement and agreed by the parties and set out in the schedule and includes the Functional Specifications and includes any Web Site Modification;

“World Wide Web” means a method of representing and obtaining graphical data and Linking data items used by Internet Users.

1.2 Interpretation

In the interpretation of this Agreement, unless the context or subject matter otherwise require:

(a) singular includes plural and vice versa;

(b) any gender includes every gender;

(c) a reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;

(d) references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;

(e) references to signature and signing include due execution of a document by a corporation or other relevant entity;

(f) references to months mean calendar months;

(g) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;

(h) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;

(i) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;

(j) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;

(k) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;

(l) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and

(m) a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.

2. DEVELOPMENT SERVICES

2.1 The Customer hereby:

(a) engages Apex to provide the Development Services in the manner prescribed in this Agreement in consideration of the Development Fee;

(b) agrees to pay any Milestone Deposit on acceptance of this Agreement to Apex;

2.2 Apex will commence the Development Services in accordance with the Milestone Dates but not before the agreement of the Customer to the Web Site Specifications.

3. CUSTOMER’S OBLIGATIONS

3.1 The Customer shall:

(a) provide all Customer Materials to enable Apex to develop the Web Site Specifications and provide the Development Services;

(b) provide all other data and content to be incorporated into the Web Site as requested by Apex from time to time;

(c) provide of any other information, ideas or suggestions which the Customer requires Apex to consider in providing the Development Services.

3.2 The provision of all information under clause 3.1 must be undertaken in the method and manner reasonably specified by Apex and within the timeframes requested by Apex so as to enable Apex to meet the Milestone Dates.

3.3 Where the Customer delays the provision of information to Apex under clause 3.1, the Milestone Dates are deemed to automatically be extended by the number of days the Customer failed to provide the information to Apex after the date that the Customer Materials were to be delivered.

3.4 Notwithstanding clause 3.3, the Customer expressly acknowledges and agrees that the Milestone Payments are not changed and the Customer is liable to pay the Milestone Payment on the Milestone Date notwithstanding that the Milestone Payment does not accord with a Milestone being completed as extended by virtue of clause 3.3.

3.5 Apex shall not be liable to the Customer in any way whatsoever where a delay in the provision of the information under clause 3.1 results in a delay in delivery of the Web Site.

3.6 The Customer warrants that the Customer Materials it provides to Apex for incorporation into the Web Site or as part of the Development Services: (a) does not infringe the Intellectual Property Rights of any person; (b) is not obscene, offensive, upsetting, defamatory; and (c) does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.

3.7 The Customer indemnifies Apex in respect of any losses, damage or liability incurred by Apex as a result of a breach by the Customer of its obligations pursuant to clause 3.6.

3.8 Apex reserves the right to refuse any Customer Materials (at its discretion) unless, on Apex’s request, the Customer provides Apex with adequate evidence that it either owns or has the right to use such Customer Materials.

4. APEX’S OBLIGATIONS

4.1 Apex warrants that the Development Services and the Web Site (other than the Customer Materials) do not:

(a) infringe the Intellectual Property Rights of any person;

(b) are not obscene, offensive, upsetting, defamatory; and

(c) do not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.

4.2 Apex will indemnify the Customer in respect of any losses or liability incurred as a result of a breach by Apex of its obligations pursuant to clause 4.1.

4.3 Nothing in this clause shall affect Apex’s right to exercise its own judgment and utilize its creative skills, as it considers most appropriate in order to develop the Web Site in accordance with the Development Specifications.

4.4 Apex shall provide the Customer, on request, with verbal reports regarding the present status of a Milestone.

4.5 As soon as practicable after becoming aware of a potential or actual delay in achieving a Milestone due to no default of the Customer, Apex will notify the customer in writing of the nature and cause of the delay and the steps being undertaken to overcome the delay.

4.6 If a delay in respect of any Milestone is directly caused by Apex and not a delay outside the control of Apex, and such delay continues for more than 30 days after the date upon which a Milestone is to be completed, such a delay will constitute a termination event and the provisions of clause 15 will apply.

5. MODIFICATIONS

5.1 If the Customer desires a Website Modification the Customer shall describe the additional services or deliverables to Apex in written (email) Form.

5.2 If Website Modification requests are not provided to Apex in written (email) form it is up to the discretion of Apex as to whether or not the changes will be made.

6. ACCEPTANCE TESTS

6.1 At the completion of the Development Services, Apex will provide the Customer with reasonable access to the Web Site to enable the Customer to undertake the Acceptance Tests.

6.2 The Customer has 7 days from the date the Web Site is available to the Customer to undertake the Acceptance Tests [AC Term] and advise Apex of each and every fault with the Functional Specifications of the Web Site acting reasonably.

6.3 Apex will provide remedial services to fix any errors in the Functional Specifications at no cost to the Customer within reasonable time.

6.4 On the expiration of AC Term, Apex is under no obligation to fix any further errors in the Functional Specifications as notified by the Customer, unless such errors mean that the Web Site is not fit for the purpose for which it was designed under the Web Site Specifications.

6.5 Where an error under clause 6.4 does not relate to the Web Site fitness for purpose any request to fix such errors will be subject to Web Site Modification.

6.6 On the later of the AC Term or the date that Apex fixes any errors in the Functional Specification found by the Customer during the AC Term, Apex must provide the Customer with a certification that the Web Site operates in accordance with and otherwise complies with the Functional Specifications.

7. PAYMENT

7.1 Payment of the Milestone Payments shall be made in accordance with the stages set out in Website Specifications.

7.2 If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by Apex pursuant to this Agreement, the Customer will pay the undisputed portion on the due date.

7.3 The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this Agreement. If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest at the reserve bank reference rate plus 2 per cent per annum.

7.4 Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

7.5 In addition to paying the Charges and any other amount payable in connection with this agreement (which is exclusive of GST), the Customer will: (a) pay to Apex an amount equal to any GST payable from any supply by Apex in respect of which the Charges or any other amount that is payable under this agreement; and (b) make such payment either on the date when the Charges are due or within seven days after the Customer is issued with a tax invoice, whichever is the later.

7.6 Apex must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this agreement.

7.7 Apex will promptly create an adjustment note for a refund, and refund the Customer inclusive of GST where GST has been paid by the Customer.

7.8 The Web Site, graphics and programming code remain the property of Apex until the final Milestone Payment is paid by the Customer subject to clause 7.2 above.

7.9 Apex may, at its sole discretion, cease to continue to provide any Development Services and cease access to the Web Site if any Milestone Payment remains unpaid for a period of at least seven (7) days.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Subject to

8.2, Intellectual Property Rights in the Web Site shall vest in the Customer.

8.2 Notwithstanding clause 8.1, the Customer acknowledges that there is no assignment of Intellectual Property Rights in: (a) the Apex IP; (b) any pre-existing material (including but not limited to Apex’s software, software modules or source code relating to the software modules, User Documentation, templates and data) which is incorporated into or which has been used in the course of developing the Web Site.

8.3 Except to the extent so notified by Apex to the Customer, Apex shall be responsible for: (a) obtaining all necessary permission, authorisations, licences and consents in relation to the use and incorporation of Third Party Materials into the Web Site at the request of the Customer or as part of the Customer Materials; and (b) payment of all royalties or licence fees associated with the use of a third party’s Intellectual Property Rights in connection with the Web Site as a result of the Customer Materials.

8.4 Without limiting the generality of the clauses, if it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property Rights has occurred, Apex shall at its sole expense: (a) modify the Web Site in order to avoid continuing infringement; (b) procure for the Customer the right to continue the use or possession of the infringing Web Site; or (c) if the solutions in either of the preceding clauses cannot be achieved, the parties will negotiate in good faith to resolve the infringement in a way which ensures that Apex complies with any order of the independent tribunal of fact or law.

8.5 To the extent permitted by applicable law, Apex consents, and will obtain all other necessary written consents, to any act or omission that would otherwise infringe any Moral Rights in the developed materials comprised within the Web Site, and further Apex waives and will obtain all other necessary written waivers, of all Moral Rights in such developed materials, for the benefit of the Customer, its licensees, successors in title and anyone authorised by any of them to do acts comprised in the copyright.

8.6 To the extent permitted by applicable law, the Customer consents, and will obtain all other necessary written consents, to any act or omission that would otherwise infringe any Moral Rights in the Customer Materials, and further Apex waives and will obtain all other necessary written waivers, of all Moral Rights in such Customer Materials, for the benefit of the Apex, its licensees, successors in title and anyone authorised by any of them to do acts comprised in the copyright.

9. WARRANTY

9.1 Apex warrants the Web Site will: (a) be fit for the purpose identified in the Web Site Specifications; and (b) not infringe any Intellectual Property Rights and contractor proprietary rights, or constitute a breach of any agreement with any other person.

  1. INDEMNITY Apex shall not be liable and the Customer hereby indemnifies Apex in respect of any Claim which may arise as a consequence of the Customer modifying, in whole or part, any of the Web Site or any combination or incorporation by the Customer of the Web Site with any other program or system except as provided for by Web Site Specifications.

11. LIABILITY

11.1 The liability of Apex in damages, except in relation to liability for personal injury, property damages or an infringement of confidentiality or Intellectual Property Rights, (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 (other than any negligent act or omission) of Apex in connection with its Obligations will not exceed the amount (if any) of the Development Fee, even if Apex has been advised by the Customer as to the possibility of such losses being incurred.

11.2 Apex does not warrant that the Functional Specifications contained in the Web Site will be uninterrupted or error‐free. In no event will Apex be liable to the Customer or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the Web Site.

12. LIMITATION OF REMEDIES

The Customer assumes the entire risk of using the Web Site following its completion by Apex. Any liability of Apex is limited exclusively to rectification of the Web Site. This is the Customer’s sole remedy and in no event will Apex be liable to the Customer or any other person for any direct, indirect, special, incidental or consequential loss or similar damage even if Apex has been advised of the possibility of such damage. The Customer hereby releases Apex from all and any such Claims. The disclaimer and exclusion of liability includes specifically but without limitation any liability which may arise as a result of the negligence of Apex.

13. IMPLIED TERMS

Any condition or warranty which would otherwise be implied in this agreement is hereby excluded.

14. CANCELLATION

14.1 The Customer may elect to terminate the Development Services for any reason by Notice in writing to Apex (Cancellation).

14.2 In the event of Cancellation of the Development Services, any Milestone Payments made prior to the Cancellation shall be retained by Apex.

14.3 In addition, if the Cancellation is prior to the agreement of the Web Site Specifications, a cancellation fee of fifteen percent (15%) of the balance of the Development Fee shall be paid by the Customer to Apex.

14.4 If the Cancellation is later but prior to the Acceptance Tests, a fee of thirty percent (30%) of the balance of the Development Fee shall be paid by the Customer to Apex.

14.5 If the Cancellation is later but prior to the delivery of a beta version of the Web Site, the cancellation fee shall be fifty percent (50%) of the balance of the Development Fee.

14.6 If the Cancellation is after the delivery of the beta version, the cancellation fee shall be one hundred percent (100%) of the balance of the Development Fee.

14.7 In the event of a Cancellation, Apex: (a) will return all Customer Materials; and (b) Apex shall retain all right, title and interest in the Web Site [less the Customer Materials].

15. TERMINATION

15.1 For the purpose of this agreement, the following are terminating events: (a) the breach or threatened breach by either party of any of its material obligations under this agreement; (b) the appointment of any type of insolvency administrator in respect of the property or affairs of either party; (c) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors; (d) the significant delay by the Customer to provide the Customer Materials when requested by Apex; (e) any event described in this agreement as a terminating event; or (f) the failure by the Customer to pay any Milestone Payment within 7 days of it becoming due and payable.

15.2 The agreement may be terminated immediately by the party on the happening of a terminating event at the option of the affected party.

15.3 If the terminating event is one specified in clauses 15(1)(a) to (e), the affected party shall give to the other party notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or the undertaking not given (as the case may be) within 14 days the affected party may agree to waive its rights under this clause if satisfied that the happening of the terminating event has not in any way prejudiced its position under this agreement.

16. CONFIDENTIALITY

16.1 A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.

16.2 A party will not be in breach of clause 16.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

16.3 Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.

16.4 Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

16.5 This clause will survive the termination of this agreement until such time as the confidential information becomes part of the public domain.

17. PRIVACY

17.1 Apex will not use or disclose any personal information for a purpose other than discharging its obligations under this agreement.

17.2 Apex further agrees to comply at all times with the National Privacy Principles contained in Sch 3 to the Privacy Act 1988 (Cth) (or an applicable privacy code approved by the Federal Privacy Commissioner pursuant to that Act) in the same way and to the same extent as the Customer would have been required to comply had it been directly responsible for performing the act or practice concerned.

17.3 Apex will take all necessary steps to protect personal information in its possession against misuse or loss and it will return all such information to the Customer (or if requested by the Customer, destroy or de-identify such information) upon termination or expiry of this agreement. This clause will survive the termination or expiry of this agreement.

17.4 For the purpose of this clause, “personal information” means information or an opinion about an individual as defined in s 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by Apex for the purposes of this agreement.

18. RESTRAINT OF TRADE

It shall be a condition of Apex undertaking the Development Services and for twelve months after delivery of the Web Site, that the Customer shall not, without the prior written consent of Apex, employ by itself or by any associated person or company an employee or former employee of Apex who shall have taken part in the performance of this project.

19. ENTIRE AGREEMENT

This document supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Web Site. No addition to or modification of any provision of this document shall be binding upon the parties unless made by written instrument signed by a duly Authorised Representative of each party.

20. NOTICES

All Notices which are required to be given under this document shall be in writing and shall be sent to the address of the recipient set out in the Web Site Specification or such other address as the recipient may designate by notice given in accordance with this clause. Any Notice may be delivered by hand or by pre-paid letter or fax or email. Any such Notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or when despatched or on transmission by the sender (if sent by facsimile) or on successful transmission by email.

21. ASSIGNMENT

21.1 Apex may assign its Rights and Obligations under this document without the consent of Customer.

21.2 The Customer may not assign its Rights or Obligations under this document without the prior written consent of the Apex otherwise than to a related body corporate of the Customer.

21.3 If the Customer assigns its rights and obligations under this document to a third party, the Customer will ensure that this document shall be novated in its entirety to that third party and that the third party agrees to be bound by the terms of this document.

22. LAW

This document shall be governed by and construed in accordance with the laws for the time being in force in the State of Queensland Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of the State of Queensland.

23. WAIVER

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

24. VARIATION

The provisions of this document may not be varied except by agreement in writing signed by both parties.

25. SEVERABILITY

Should any part of this document be or become invalid, that part shall be severed from this document. Such invalidity shall not affect the validity of the remaining provisions of the document.

26. DISPUTE RESOLUTION

Any dispute or difference arising in connection with this document shall be submitted to arbitration in accordance with, and subject to, the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.

ONGOING HOSTING PAYMENTS ARE AN ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT.

EXECUTED by Apex Designs Digital Services ABN 17 729 721 185 in accordance with section 127 of the Corporations Act 2001