Internet Development Agreement
1. Parties
1.1. This agreement is made between ____________ ("the Customer") and Datalink Internet Systems Pty. Ltd ("the Supplier").
2. Definitions
2.1. 'Acceptance Tests' means the tests specified in the Schedule.
2.2. 'Confidential Information' means the confidential information of a party which relates to the subject matter of this agreement or comes into the possession of a party in the course of its performance of its obligations hereunder, and includes information relating to -
(a) the design, specification or content of the Software,
(b) the personnel, policies or business strategies and information of the Customer, and
(c) the terms of this agreement.
2.3. 'Customer's Specifications' means the specifications for the development of the Software as set out herein.
2.4. �Customer�s Site� means the address of the Customer as specified in the Schedule.
2.5. 'Designated Equipment' means the equipment designated for the installation of the Software.
2.6. 'Designated Operating Environment' means the technical environment in which the Software is to be used, as specified herein.
2.7. �Developmental Stages� means the time limits specified in the Schedule for the completion of individual components of the Software.
2.8. �Force Majeure� means any act, omission or circumstances over which the Supplier could not reasonably have exercised control.
2.9. 'Intellectual Property Rights' means copyright, trade mark, design, patent rights.
2.10. �Software� means the computer program to be developed by the Supplier pursuant to this agreement; consisting of a set of instructions or statements in machine readable medium only and any associated materials and documentations.
2.11. �Source Code� means the computer program instructions in human readable format.
2.12. 'Supplier Fee' means the fees for software development to be calculated and paid in accordance with the Schedule.
2.13. �Supplier Services� means the services to be performed by the Supplier under this agreement specified in the Schedule.
3. Scope of agreement
3.1. The Customer will employ the Supplier and the Supplier will serve the Customer by performing the Supplier Services in accordance with this agreement.
4. Charges and payment
4.1. The Customer will pay the Supplier the Supplier Fee specified in the Schedule for the Supplier Services.
4.2. The Customer will pay the Supplier Fee on the dates specified in the Payment Schedule after receipt of a tax invoice for the amounts specified in the Payment Schedule.
4.3. The Customer will pay a final payment at the completion of the project to cover the difference between the sum of the Payment Schedule and the actual calculated cost of the project after receipt of a tax invoice.
4.4. All fees and charges payable to the Supplier under this agreement are inclusive of GST, but are exclusive of other taxes, duties, fees or other government levies or charges which may be imposed on or in respect of the Software, its use or its maintenance, under this agreement or otherwise.
4.5. The Customer will be in breach of this agreement if it fails to make any payment within 14 days of the due date.
4.6. If any payment owing to the Supplier is not made within 7 days of the due date, the Supplier may give notice to the Customer of its intention to suspend further services or its remaining obligations to the Customer under this agreement, and if payment has not been made within 7 days thereafter, it may without further notice, do so.
5. Expenses
5.1. If the Supplier's Fee in the Schedule so specifies, the Customer will reimburse the Supplier the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this agreement, including travel expenses between the Supplier�s premises and the Customer�s Site, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred by the Supplier to promptly and efficiently provide the Supplier services.
6. Title
6.1. All Intellectual Property Rights in and associated with the Software are assigned to and vest in the Supplier as such rights are created.
6.2. All Intellectual Property Rights in and associated with any program code provided by the Customer vest and remain vested in the Customer.
7. Licence
7.1. The Supplier shall upon payment of all moneys owing pursuant to this Agreement grant the Customer a non-exclusive licence to use the Software (including Source Code) for the following purposes:-
(a) to use within the Customer�s organisation for the purposes as set out in the Schedule;
(b) to further develop and modify the original Source Code;
(c) to provide a copy of the Source Code to third parties for the purposes of hosting and development.
7.2. The Customer must not re-sell, lend, or otherwise transfer the program or Source Code for purposes other than mentioned in paragraph (7.1(a)).
8. Source Code
8.1. The Supplier shall upon payment of all moneys owing pursuant to this agreement provide the Customer with a copy of all Source Code as nominated in the Schedule in unencrypted electronic format. The Source Code is subject to the licence as specified in this agreement.
9. Responsibilities of the Supplier
9.1. Subject to the terms of this agreement, in addition to its other obligations hereunder, the Supplier will have the following responsibilities -
(a) general advice concerning the initial development, operation and use of the Software;
(b) development of the documentation for the Software;
(c) training and instruction of the Customer's personnel in the use of the Software and the interpretation of the documentation; and
(d) resolution of Software deficiencies, and operational difficulties.
10. Development Stages
10.1. The Supplier will adhere to the time limits imposed in the Development Stages.
10.2. The Supplier must, at the Customer�s expense, -
(a) on request made not more frequently than weekly, provide the Customer with written interim reports as to the status of the development of the Software; and
(b) provide a suitably qualified, informed and authorised representative at meetings concerning the development of the Software who must discuss issues and accurately answer questions as to the Software and its development.
10.3. If the Supplier fails to comply with a milestone nominated in the Development Stages the Customer may -
(a) withhold any payment otherwise due hereunder;
(b) if such failure lasts 30 days, terminate this agreement and pursue any remedies available to it under this agreement and at law.
10.4. The Supplier will permit the Customer upon reasonable notice to examine design techniques and workmanship in the Software to satisfy itself as to the status and quality of the development of the Software.
11. Variation of Specifications
11.1. If the Customer wishes to vary the Customer�s specifications set out in the Schedule, the Supplier will not be bound to agree, but the Parties may agree to changes on such terms, including as to charges, as they see fit.
11.2. Such variations must be in writing.
12. Installation
12.1. The Supplier will install the Software or any component thereof on the Designated Equipment on or before the installation date specified herein.
12.2. The Customer will give the Supplier such reasonable assistance, including the provision of personnel and equipment, as the Supplier considers necessary to ensure satisfactory installation.
13. Force Majeure
13.1. The Supplier will not be liable for any delay or failure to perform its obligation if such failure or delay is due to Force Majeure.
13.2. The Supplier will notify the Customer as soon as practicable of any anticipated delay due to Force Majeure. The performance of the Supplier�s obligations under this agreement will be suspended for the period of the delay due to Force Majeure, proof of which will lie on the Supplier.
13.3. If delays in performance under this agreement due to Force Majeure exceed 30 days, the Customer may terminate this agreement immediately by notice to the Supplier. If the Customer gives such notice to the Supplier -
(a) the Supplier will refund moneys previously paid by the Customer under this agreement for which no services have been provided; and
(b) the Customer will pay the Supplier a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Customer.
14. Acceptance Testing
14.1. Upon completion of the project the Supplier must conduct the Acceptance Tests within the timeframe specified, and provide the Customer with certification that the Software has satisfied the Acceptance Tests.
14.2. The Customer will be entitled to observe the Acceptance Tests.
15. Warranty Period
15.1. At the completion of the project, the Supplier will fix any defects in the Software if notice is given by the Customer within the period specified in the Schedule.
15.2. The Supplier will not charge for any work performed under paragraph (15.1) unless under the following circumstances :-
(a) no defect is found;
(b) the defect is found to be due to the incorrect usage of the Software;
(c) the defect is found to be outside the control of the Supplier, including but not limited to defects in third party software.
16. Termination
16.1. Without limiting the generality of any other clause in the agreement, the Supplier may terminate this agreement immediately by notice in writing if -
(a) any payment due from the Customer to the Supplier pursuant to this agreement remains unpaid for a period of 14 days after suspension of services; or
(b) the Customer breaches any clause of this agreement and such breach is not remedied within a reasonable time of written notice by the Supplier.
16.2. Without limiting the generality of any other provision in the agreement, the Customer may terminate this agreement immediately by notice in writing at any time. In that event -
(a) the Supplier will refund moneys previously paid by the Customer under this agreement for which no services have been provided; and
(b) the Customer will pay the Supplier a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Customer.
16.3. Either Party may terminate this agreement immediately by notice in writing to the other if -
(a) the other becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
(b) the other, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(c) the other, being a natural person, dies; or
(d) the other ceases or threatens to cease conducting its business in the normal matter.
16.4. On the termination or completion of this agreement, howsoever occurring, and notwithstanding that it may occur in consequence of repudiation by the Customer or the Supplier, the Supplier must -
(a) if requested to do so, forthwith deliver up to the Customer all documents, notes, and program code provided to it by the Customer in connection with the Supplier Services, and all copies of the Software, Source Code fragments and the Software documentation, and all such other things to which the Customer may be entitled, and
(b) forthwith cease to use any special access privileges to access or attempt to access the servers of the Customer or used by the Customer.
17. Assignment
17.1. Subject to paragraph (18.1), the benefit of this agreement will not be dealt with in any way by either party (whether by assignment, sub-licensing or otherwise) without the other party�s prior written consent.
18. Sub-contracts
18.1. The Supplier may sub-contract for the performance of this agreement or any part of this agreement, but it will remain liable to the Customer for all its obligations hereunder.
19. Other Services
19.1. In the event that the Customer engages the Supplier to provide services going beyond, or other than those for which there is express provision herein, the Customer will pay the fees and charges agreed in relation to those services at the agreed times, and in the absence of agreement, reasonable fees and charges, and the terms of this agreement will apply with necessary changes in relation to such services.
20. Waiver
20.1. No right under this agreement will be deemed to be waived by a party except if such a waiver is in writing signed by the party alleged to have waived the right.
20.2. A waiver by a party will not prejudice its rights in respect of any subsequent breach of this agreement by the other party.
20.3. Subject to paragraph (20.2), any failure by a party to enforce any provision of this agreement, or any forbearance, delay or indulgence granted by a party to the other will not be construed as a waiver of the first-mentioned party�s rights under this agreement.
21. Entire agreement
21.1. This agreement constitutes the entire agreement between the parties for the provision of Supplier Services by the Supplier to the Customer. Any prior arrangements, agreements, representations or undertakings are superseded. Any modification or alteration of any clause of this agreement will not be valid except in writing signed by each party.
22. Headings
22.1. Headings used in this agreement are for convenience and ease of reference only, are not part of this agreement and will not be relevant to or affect the meaning or interpretation of this agreement.
23. Severability
23.1. If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
24. Governing law
24.1. This agreement will be governed by and construed according to the law in Victoria and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
25. Notices
25.1. Notices under this agreement may be delivered by hand, registered mail, facsimile or by electronic mail (email) to the address of the parties specified in or notified pursuant to this agreement.
25.2. Notice will be deemed given -
(a) in the case of hand delivery or registered mail, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) in the case of a facsimile, upon proof of completion of transmission;
(c) in the case of email, upon receipt of a delivery receipt.
26. Confidentiality
26.1. The parties' obligations under this clause will survive the termination of this agreement.
26.2. A party must not, except with the prior written approval of the other party or under compulsion of law, disclose the other party�s Confidential Information.
26.3. A party must ensure that its employees and contractors do not except with the prior written approval of the other party or under compulsion of law, disclose the other party's Confidential Information.
26.4. This Clause will not operate to prevent a party from making reasonable disclosure of the terms of this agreement other than Confidential Information of a technical nature to its auditors, solicitors, accountants and insurers.
27. Intellectual Property Rights
27.1. The Supplier warrants that the Software will not infringe the Intellectual Property Rights of any person, and except that a claim relates to the program code provided by the Customer, will indemnify the Customer against any loss, expense, demand or liability, whether direct or indirect, arising out of a claim by another alleging that the Software infringes Intellectual Property Rights.
27.2. The Customer warrants that the program code provided by it does not infringe the Intellectual Property Rights of any person.
27.3. To ensure continued compliance with Intellectual Property Rights, after completion ot the project the Customer has the following responsibilities :-
(a) to ensure that any development preserves all licences and copyright notices present in the Source Code;
(b) to ensure that any third parties contracted to work with the Source Code are aware of the licence issued under this agreement.
28. Quality Assurance
28.1. The Supplier warrants that the Software will be free of defects and errors, will be properly installed, and will be compatible with the Designated Operating Environment, and that it will be virus free.
29. Disputes
29.1. Any dispute arising in connection with this agreement which cannot be settled by negotiation between the parties or their representatives will be submitted to arbitration in accordance with the Rules of Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
30. Exclusions and Limitation of Liability
30.1. If the Software when delivered is found to be defective, and the defect is shown by the Supplier to be solely due to work undertaken in the development of the Software before the engagement of the Supplier, the Customer will allow the Supplier a reasonable opportunity to correct the defect.
