COMMERCIAL DETAILS
Parties: Wiliam Pty Ltd (“Promisor”)
14-16 Berry Street
North Sydney
NSW 2060
PROMISEE Pty Ltd (“Promisee”)
IMPORTANT NOTICE
Subject to any agreement to the contrary, by instructing the Promisor to commence work, or by promising to pay any Fees to the Promisor, the Promisee unreservedly accepts the terms of this Agreement, detailed hereunder.
PART ONE – WEBSITE SERVICES TERMS & CONDITIONS
1. Website Services and Variation of Instructions
1.1 PROMISEE appoints PROMISOR as the supplier of Website Services for the Term on the terms as set out in this agreement (the Agreement).
1.2 PROMISOR agrees to supply Website Services to PROMISEE in accordance with this Agreement (meaning the provisions in Schedule 1 of this Agreement).
1.3 If PROMISEE wishes to vary the scope of the Website Services, Schedule 5 applies:
2. Risk & Title
2.1 Risk, with no exceptions or qualifications whatsoever, in relation to the consequences of the Website Services supplied will pass to PROMISEE at the time that they are supplied by PROMISOR to PROMISEE, notwithstanding anything else in this Agreement.
2.2 Subject to Schedule 3 of this Agreement, title of all material will pass to PROMISEE upon PROMISEE paying to PROMISOR all Fees that relate to those materials or to the time period covering such materials.
3. Assistance
PROMISEE shall provide reasonable assistance to PROMISOR, including access to:
3.1 premises;
3.2 employees and contractors;
3.3 data and databases;
3.4 systems; and
3.5 documents,
as PROMISOR reasonably needs to supply the Website Services.
4. General Services Commitment
PROMISOR agrees to supply the Website Services to PROMISEE:
4.1 in accordance with the requirements of this Agreement;
4.2 in a manner with due skill and care; and
4.3 in accordance, subject to this Agreement, with all applicable laws.
PART TWO - GENERAL TERMS & CONDITIONS
5. Term
This Agreement shall be in force for the duration of the supply of the Website Services, subject to the clauses of this Agreement which survive termination.
6. Payment for the Website Services
6.1 In consideration of PROMISOR agreeing to supply the Website Services, whether in whole or in severed parts, PROMISEE must pay the Fees and Disbursements to PROMISOR.
6.2 The Fees and Disbursements shall be paid by PROMISEE upon receipt of a written invoice and must be paid within the terms set out by such an invoice.
6.3 A breach of this clause is a breach of a Condition of the Agreement, giving rise in Promisor to a right to terminate the Agreement.
6.4 For the avoidance of doubt, time is of the essence with respect to any part of this clause.
7. Taxes and Charges
The Fees are exclusive of Taxes and Charges. Provided that PROMISOR supplies to a Tax Invoice to PROMISEE, PROMISEE shall, in addition to the Fees, pay to PROMISOR, at the same time that PROMISEE is obliged to pay the Fees an amount which is equivalent to the Taxes and Charges payable by PROMISOR in relation to the supply of the goods or services to which the Fees relate.
8. Termination
8.1 The Terminating Party may terminate this Agreement without notice if the Breaching Party:
8.1.1 breaches any provision of this Agreement and fails to remedy that breach within fourteen (14) days after receiving notice in writing from the Terminating Party requiring it to do so;
8.1.2 ceases to be able to pay its debts as and when they become due;
8.1.3 becomes subject to any form of insolvency administration; or
8.1.4 is subject to any step is being taken by a mortgagee to take possession or dispose of the whole or any part of the Breaching Party’s assets; or
8.1.5 breaches a Condition, as opposed to a Warranty, of this Agreement.
8.2 Nothing in clause 4 limits or affects any other remedy that may be available to the Terminating Party including claims for loss or damage suffered by the Terminating Party.
8.3 Notwithstanding anything else in this Agreement, if PROMISOR terminates the Agreement validly pursuant to a breach of a Condition by PROMISEE, or if PROMISEE repudiates this Agreement, PROMISOR expressly retains the right to recover the entire amount that would have been due to PROMISOR had the contract been fully performed, including, but not limited to, the recovery of sums of which the right to recover has already vested in PROMISOR.
9. Confidentiality
9.1 Each party shall keep secret and confidential all Confidential Information of the other party and shall not directly or indirectly disclose nor abet nor incite the disclosure of all or any part of such Confidential Information to any Third Party or use all or any part of such Confidential Information for any purpose other than as contemplated under this Agreement.
9.2 Each party must:
9.2.1 establish and maintain effective security measures to safeguard the Confidential Information of the other party under its control from unauthorised access or use;
9.2.2 immediately notify the other party of any suspected or actual unauthorised use, copying or disclosure of the Confidential Information of the other party.
9.3 The obligations of confidence set out in the preceding provisions of this clause 5 do not apply in relation to any information of a party:
9.3.1 that is not improperly in the public domain; or
9.3.2 that is required to be disclosed by law.
9.4 The obligations of the whole of clause 5 survive termination of the Agreement.
9.5 For the removal of doubt, each party is responsible for any breaches of confidence by its employees or contractors.
10. Limitation of Liability
To the extent permitted by statute, neither party shall, subject to this Agreement, have any liability to the other party for any Losses arising under or in connection with this Agreement (including arising from breach of this Agreement or the negligent act or omission of a party in connection with the performance of its obligations under this Agreement):
10.1 Other than Losses which are related to acts of slander or libel
10.2 Other than Losses which relate to a breach of clause 5 of this Agreement
10.3 Other than Losses which relate to deliberately fraudulent actions
10.4 Other than Losses which relate to interest payable on debts
11. Events outside control
11.1 Neither party is liable for not completing an obligation on time (except an obligation to pay money) because of an event beyond that party's reasonable control.
11.2 If an event beyond a party's reasonable control occurs, that party must:
11.2.1 give the other notice of the event promptly and an estimate of the extent of the non-performance and delay;
11.2.2 take all steps to end the event as quickly as possible (but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and
11.2.3 resume compliance as soon as reasonably possible
12. Intellectual Property Ownership
12.1 PROMISOR acknowledges that, as between PROMISOR and PROMISEE, all Intellectual Property Rights in all Trade Marks of PROMISEE are only to be used with the written permission of PROMISEE.
13. Progress or Milestone Payments
13.1 For the avoidance of doubt, any part payments due under Schedule 3 unconditionally vest in the payee when either the relevant date has passed or when PROMISOR notifies PROMISEE that the milestone has been met.
14. Consequences of Expiry and Termination
Subject to this Agreement, if this Agreement expires or is terminated for any reason:
14.1 each party shall reasonably continue to protect Confidential Information of the other party;
14.2 unless otherwise agreed by the parties, PROMISOR will cease performing all work for PROMISEE.
15. Dispute Resolution
15.1 Each party must notify the other party, in writing, when a dispute arises.
15.2 If the dispute has not been resolved within 30 days of notification, the parties must attempt to use an independent expert where appropriate before any party commences litigation.
15.3 The provisions of this clause do not:
15.3.1 apply to proceedings for urgent interlocutory relief; or
15.3.2 require either party to enter into arbitration.
16. Notices
16.1 Notices under this Agreement may be hand delivered, posted or sent by facsimile or email to the address, facsimile number or email address of the relevant party.
16.2 Notices hand delivered are deemed received at the time of delivery. Notices sent by post are deemed received three (3) days after posting. Notices sent by facsimile are deemed received upon the sender’s facsimile machine printing a transmission report confirming the facsimile was sent.
16.3 Either party must, in writing, notify the other of a change of address or facsimile number or email address.
17. General
17.1 Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out or referred to in this Agreement will bind the parties. Accordingly, all correspondence, negotiations and other communications between the parties in relation to the subject matter of this Agreement which precede this Agreement are superseded by and merged in it.
17.2 Amendment
This Agreement may only be amended in writing signed by both parties and not in any other manner.
17.3 Waiver
17.3.1 The failure by either party at any time to enforce any of its powers, remedies or rights under this Agreement will not constitute a waiver of those powers, remedies or rights or affect the party’s rights to enforce those powers, remedies or rights at any time.
17.3.2 Any single or partial exercise of any power, remedy or right does not preclude any other or further exercise of it or the exercise of any other power, remedy or right under this Agreement.
17.4 Severance
If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
17.5 Governing Law
This Agreement is governed by the law in force in NSW and the parties submit to the non-exclusive jurisdiction of the courts of NSW and all courts competent to hear appeals from the courts of NSW in respect of all proceedings arising in connection with this Agreement.
17.6 Assignment
Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party and no assignment of any obligation will be effective until the assignee has covenanted in favour of, and in form satisfactory to, the non-assigning party, to assume and to be bound by the obligations assigned.
17.7 Further assurances
Each party must do, sign, execute and deliver and must ensure that each of its employees and agents does, signs, executes and delivers all deeds, documents, instruments and acts reasonably required of it or them by written notice from the other party effectively to carry out and give full effect to this Agreement and the obligations of the parties therein.
PART THREE – GLOSSARY
In this Agreement, unless the context otherwise requires, the following meanings apply:
1. Definitions
Agreement means the information provided in the entirety of this document.
Appointment Fees has the same meaning and character as a deposit at law
Completion Fees means the final payment due under this Agreement
Condition means a term, the breach of which gives rise to a right to terminate
Confidential Information means information of a party (Confiding Party) (irrespective of whether or not it has been reduced to material form) that:
(a) is by its nature confidential;
(b) is designated by the Confiding Party as confidential; or
(c) the party receiving or obtaining the information (Receiving Party) knows or ought to know is confidential,
(d) includes information comprised in or relating to any Intellectual Property Rights of the Confiding Party; and
(e) includes business or marketing plans relating to the Confiding Party's business.
Disbursements has the meaning given in Schedule 3 of this Agreement
Fees means the fees (and terms of payment thereof) set out in the Fees Schedule (Schedule 3)
Final Approval means that a communication indicating satisfaction with the Website Services
Intellectual Property Rights means all intellectual property rights including:
(a) patents; copyright; rights in circuit layouts; registered designs; trademarks; trade secrets; know how; and confidential information; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a) above.
Losses mean all losses, damages, claims, and expenses whatsoever, whether foreseeable or not
Tax Invoice means an invoice that triggers the time period available to pay the Fees
Term means the period commencing on the Commencement Date specified in the Commercial Details and ending on the expiry of the Duration as specified in the Commercial Details
Third Party means a person other than PROMISOR, PROMISEE or PROMISEE’s Personnel
Warranty means a term, the breach of which gives rise to a right to damages only
Website Services means the services provided by PROMISOR pursuant to Schedule 1 of this Agreement and any variations thereof and / or any annexure thereto
2. Rules of Interpretation
In this Agreement, unless the context otherwise requires:
2.1 other grammatical forms of defined words or phrases have a corresponding meaning;
2.2 where a clause is referred to in particular terms and conditions that form part of this Agreement, the reference is to a clause in those terms and conditions; and
2.3 a reference to a schedule is to a schedule forming part of this Agreement.
SCHEDULE 1 WEBSITE SERVICES
This schedule represents the services to be provided by PROMISOR to PROMISEE.
1. An agreed proposal and pricing document will form part of this Schedule. The Fees set out in Schedule 3 will reflect the pricing document referred to in Schedule 1 of this Agreement.
2. A Functional Specification, save agreement to the contrary, will be added as an annexure after PROMISOR has drafted the Functional Specification
3. PROMISEE will not unreasonably withhold consent to the Functional Specification
4. Any changes, with respect to the Functional Specification, requested by PROMISEE, will be addressed pursuant to Schedule 5 (Variations) of this Agreement
Annexure A Agreed Proposal and Pricing Document
Annexure B Functional Specification
SCHEDULE 2 TIMELINE
PROMISOR will deliver the Website Services to PROMISEE in an agreed timeline.
Failing agreement, PROMISOR will deliver the Website Services in a reasonable time, in several parts.
SCHEDULE 3 FEES and DISBURSEMENTS
Website Service Fees under this Agreement
The Fees The Fees are as communicated to PROMISEE in the documentation referenced in Schedule 1 of this Agreement
Invoices PROMISOR shall supply a Tax Invoice to PROMISEE as appropriate, and, notwithstanding anything else in this Agreement, PROMISEE must give written notice within ten (10) business days of any dispute concerning any part of the said invoice, failing which PROMISEE is conclusively and finally taken to have foregone any right of contesting the invoice.
Disbursements under this Agreement
Monthly account PROMISEE shall reimburse to PROMISOR all reasonable, project-related expenses incurred each month, as well as any pre-approved other expenses incurred.
PROMISEE shall only be required to pay Disbursements to PROMISOR upon production by PROMISOR to PROMISEE of appropriate supporting documentation.
SCHEDULE 4 INTELLECTUAL PROPERTY
This schedule represents the distribution of rights subsistent in any Intellectual Property that is concerned with the performance of the Agreement.
Ownership PROMISEE attains the full legal and equitable ownership of all Intellectual Property in the manner outlined by clause 2 of Part 1 of this Agreement with the exception of the following Intellectual Property:
Exceptions Functional Specification
SiteDock
SiteCast
SiteRank
SCHEDULE 5 VARIATIONS
PROMISEE can vary the scope of Website Services, in accordance with the following Conditions
1. The total sum recoverable, by PROMISOR, under Schedule 3, cannot decrease
2. The total sum recoverable, by PROMISOR, under Schedule 3, shall be increased by:
2.1 The reasonable value of the time used to receive and process amended instructions
2.2 The price estimated by PROMISOR and approved by PROMISEE with respect to the variations requested
2.3 PROMISEE will not unreasonably withhold consent with respect to approving the estimations of the requested variations
2.4 If approval is not supplied, the costs associated with clause 2.1 of this Schedule will be invoiced to PROMISEE, and the project will proceed as if no Variations occurred
3. Any instructions received pursuant to a Variation will be annexed to this Agreement as
3.1 Annexure Amended Instructions
3.2 Annexure Further Amended Instructions
3.3 Annexure Second Further Amended Instructions
3.4 Annexure Third Further Amended Instructions and so on
SCHEDULE 6 NOT APPLICABLE