Definitions: In this Agreement:
i. This Agreement commences and is deemed to have effect on the date that the Authority to Proceed is executed by the Customer and continues for the Term unless terminated in accordance with the Termination clauses. Unless stated otherwise, the term of the license is 12 months with the option to renew for an additional subsequent 12-month term based on the payment of the annual license fee.
i. The Developer must install the Website and provide the Services upon the terms of this Agreement.
ii. The Developer agrees to provide the Website and the Services in accordance with the Order Specification.
iii. The Developer must develop and install by the Installation Dates the Website in a competent, proper, efficient and timely manner in accordance with this Agreement.
iv. The Developer must supply and install the Website to the Site in accordance with the Order Specification and any agreed implementation plan and must do so in such a way as to avoid any reduction of or adverse effect on the then current business of the Customer.
i. The Developer will work in good faith with the Customer to implement an Order Specification.
ii. The Order Specification will include all project deliverables and document all fees associated with the project.
iii. The Customer signs the Authority to Proceed on the Order Specification to commence the project and accept the project fees. The Customer signs the Authority to Proceed to agree with the terms and conditions in this Terms and Conditions for the Supply, Hosting and Management of Your PowerHouse Platform agreement.
iv. The Customer agrees to pay the Developer on or before the payment date included on the Order Specification and Customer invoice. In the event of a non-payment or overdue payment, 15 days after the payment date, Mediasphere may deactivate your site. A site-reinstatement fee may apply. A service fee of 10% may be charged to all overdue accounts.
i. The Developer and Customer agree that on the Installation Date the Website will consist of:
i. The Developer and Customer confirm that the Developer retains ownership of all rights, title and interest in and to the Developer Tools and Templates, including, without limitation, all applicable Intellectual Property Rights to the Developer Tools and Templates. The Developer retains all right, title and interest in and to all tools and other information and materials used in the creation or development of the Developer Tools and Templates.
i. The Developer grants to the Customer (and its Related Bodies Corporate) a fully paid, non-exclusive licence for the Term, to use, publicly perform, publicly display and digitally perform the Developer Tools and Templates solely for the purpose and to the extent necessary to operate the Website.
ii. The licence granted in this agreement is revocable and is only for the Term of this Agreement.
iii. The Developer retains the right not to renew the license for an additional Term after the expiry of the original Term if the Developer intends to enact its rights under this clause 6 (iii) then the Developer shall provide not less than 90 days’ notice to the Customer.
iv. The Developer may also terminate the licence granted with 30 days written notice prior to the expiry of the Term where there are reasonable grounds for alleging the Customer is in breach of a provision of this Agreement when the breach relates solely to:
i. The Customer confirms its grant to the Developer of a non-exclusive, royalty-free licence for the Term to reproduce, distribute and digitally perform any Customer Content or Customer Deliverables only on or in conjunction with the Website, solely for the purpose and to the extent necessary to perform the Developer’s obligations under this Agreement.
i. As between the Developer and Customer, any Customer Content stored or delivered on the website under this Agreement or otherwise, and all Intellectual Property Rights therein, at all times remains the property of the Customer or its licensor or Website subscribers. The Developer has no rights to such Customer Content, other than the limited right to use such content for the purpose expressly set out in this Agreement.
i. The Customer agrees to provide the Developer with reasonable information and access to its relevant Server Systems (including without limitation, read, write and execute privileges where such privileges relate to the Website) to the extent necessary for the Developer to perform its obligations under this Agreement.
ii. When accessing the Server Systems, the Developer must comply with any reasonable policies or directions given by the Customer.
i. The Developer will store all Customer Content on servers located on Rackspace servers in London for the United Kingdom and northern hemisphere clients and Sydney for Australian and southern hemisphere, unless otherwise specified.
ii. The Developer will comply with their Data Information and Security Policy at all times.
iii. The Developer will not store, disclose or otherwise permit access to Customer Content to anyone located outside of the countries of operation.
i. The Developer warrants that all Software, supplied under this Agreement, will upon installation conform in all material respect to their Specifications and for the period of this agreement.
ii. The Developer will take all the reasonable steps to ensure that the software operates in accordance with the contract.
i. The Developer warrants as at the Commencement Date that:
i. From the Commencement Date, the Developer agrees to perform the Services for the customer in return for the License Fee and any agreed additional fees as set out in the Order Specification.
ii. After the project commences, the Customer has the right to request project variations to cover out-of-project-scope changes to the project. Project variations requested by the Customer and not described in the Order Specification will be managed with a written scope of work, delivery dates and aligned fees that the client can approve or reject.
iii. On and from the Commencement Date and until terminated in accordance with its terms, the Developer warrants that:
i. The Developer shall keep the Customer reasonably informed during the Term of its plans for the release of Upgrades; however, except to the extent that the parties agree otherwise in writing, the Licensor shall have no obligation to release Upgrades with features requested by the Licensee or to take into account the opinions of the Licensee in relation to plans for the release of Upgrades.
ii. The Developer may produce Upgrades at least [once in each calendar year] during the Term and shall make such Upgrades available to the Customer.
iii. The Developer shall give to the Customer [at least 30 Business Days'] prior written notice of [the Release of an Upgrade].
iv. The Developer may apply each Upgrade to the Software within the period of [90 Business Days following Release].
v. The Developer reserves to right to charge a cost recovery fee for the migration of the Customer’s content and database to the updated version of the Product. The Developer will provide the Customer with the scheduled Upgrade fee in writing [at least 30 Business Days before the Upgrade].
i. Application: The service levels are provided in respect of the server used in the provision of the Services.
ii. Email Support: Support consists of responding to queries logged by the Customer’s administration users via an email submission, Monday to Friday, 9:00am to 5:00pm locally, excluding public holidays.
iii. Extended Support: The Customer may wish to license an extended support contract which provides access to phone support. This extended support will be included on the Order Specification.
iv. Contact Details: Email: [email protected]
v. Telephone and Support Requests: The Customer may contact the Developer on a range of issues including:
vi. Logging Support Call: The customer will log all internet support issues to: [email protected] After logging a support issue, the Customer will receive a support ticket number that will be used as a reference for the job.
vii. The Developer’s Response and Resolution Times for Internet Support
|Nature of Defect/Fault||Response Time within Business Hours||Resolution Time|
|Website Error||2 hours||6 to 12 hours|
|Hardware Error||4 hours||12-24 hours|
|Network Error||4 hours||12-24 hours|
|Server Software Error||4 hours||24 hours|
viii. Depending on the nature and severity of the error, the majority of response and resolution times are typically managed within 2 hours (if the error occurs during Business Hours). In some cases, however, the response time may reflect the times shown above and in extreme situations exceed these times. Events beyond the Developer’s control or impact such as Acts of God, data centre disasters (fire, flood), power supply issues, replacement hardware etc. may result in protracted response and resolution times. The Developer will keep all relevant stakeholders informed of the status and expected time for resolution. If any such delay continues for a period of more than 30 Business Days, and the issue has been caused by the Developer’s software, the Customer may terminate the Agreement effective immediately.
ix. Hardware and network errors include monitoring, response and resolution 7 days per week, 24 hours per day by the server service provider. Software errors include monitoring, response and resolution Monday to Friday, 9:00am to 5:00pm locally, excluding public holidays.
x. Server Back-Up: A server backup means a complete copy of the website files, content and database. The backup data, stored in country, is only to be used as a non-functional copy of the original website in case the original website becomes corrupt or inaccessible.
xi. The Server Back-Up Schedule includes the following:
xii. In the event of data corruption or server fault, the backup will be restored to a functional server which in effect will reinstate the website back to its previous state before the error occurred, minimizing data loss and downtime. The Developer may issue a service fee for the data recovery operation if not the fault of the Developer.
xiii. Scheduled Maintenance: The Developer will provide accurate and timely information in order to notify the Customer of all Scheduled Maintenance. The Developer will work with any third parties to ensure that Scheduled Maintenance is only to occur during Off-peak Times.
Customer warrants that:
i. It has full power, right and authority to enter into this Agreement and the Customer is not subject to any obligations that would prevent or otherwise restrict the Customer from performing its obligations under this Agreement.
ii. The Customer Content does not infringe the Intellectual Property Rights of any person;
iii. The Customer Content is not obscene, offensive, upsetting, or defamatory; and
iv. The use of the Customer Content by the Developer in connection the performance of its obligations under this Agreement is not illegal, fraudulent or of a defamatory nature.
i. Each party fully indemnifies the other against any loss, costs, expenses, demands or liability, in respect of third party claims arising out of a breach of any warranty giving.
ii. Without limiting the obligations of the Developer under this clause, if a determination is made 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, the Developer must at its sole expense:
iii. The indemnities contained in this Agreement continue notwithstanding the expiry or termination of this Agreement.
i. The Developer must comply with the Data Protection Act in relation to the Personal Data, whether or not the Developer is an organisation bound by the Data Protection Act in so far as they apply to the Developer and/or the Services.
ii. The Developer and the Customer acknowledge that for the purpose of the Data Protection Act, the Customer is the Data Controller (as defined in the Data Protection Act) and the Developer is the Data Processor (as defined in the Data Protection Act) in respect of the processing of any Personal Data.
iii. The Developer must:
iv. The Developer must not transfer Personal Data to a person (including itself) in a country outside of the European Economic Area without the Customer’s prior written consent.
v. If the Developer receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Act and the data protection principles set out therein, it shall immediately notify the Customer and it shall provide the Customer with full co-operation and assistance in relation to any such complaint, notice or communication.
vi. The Developer shall notify the Customer within 5 Business Days if it receives a request from a Data Subject (as defined under the Data Protection Act 1998) for access to that person’s Personal Data.
vii. The Developer shall provide the Customer with full co-operation and assistance in relation to any request made by a Data Subject to have access to that person’s Personal Data.
viii. The Developer shall not disclose Personal Data to any Data Subject or third party other than at the request of the Customer or as provided for in this Agreement or as required under a court order from a court with competent jurisdiction;
ix. At the Customer’s request the Developer shall provide to the Customer a copy of all Personal Data held by it in the format and on the media reasonably specified by the Customer.
x. The Developer shall immediately inform the Customer if any Personal Data is lost or destroyed or becomes damages, corrupted or unusable and the Developer will restore such Personal Data at its own expense.
xi. The Developer warrants that it will:
xii. If the Developer authorises third party subcontractors to process any Personal Data under the terms of this Agreement the Developer shall ensure that any sub-contractors are retained on terms which are substantially the same as those set out in this Agreement.
i. The Developer and Customer are each independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party has the power to obligate or bind the other party. Personnel supplied by the Developer must work exclusively for the Developer and must not, for any purpose, be considered employees or agents of the Customer and vice versa.
i. A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
ii. A party is not in breach of this clause in circumstances where:
iii. The Confidential Information was already in such party’s possession (as evidenced by written records) when provided by or on behalf of the other party.
iv. Each party must 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.
v. The Customer may at any time require the Developer to arrange for its employees, agents or sub-contractors engaged in the performance of this Agreement to execute a suitable confidentiality deed and if requested the Developer must arrange for the deed to be executed within the time frame reasonably required by the Customer.
vi. Each party must on demand or on the expiration or termination of this Agreement, destroy or return to the other party (as directed by that party) any documents supplied to that party in connection with this Agreement.
vii. Despite any other provision of this clause, the Developer may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, but must ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to the Developer.
i. Without prejudice to any other rights either party may have under this Agreement or at law or in equity, either party may terminate this Agreement with immediate effect, in whole or in part, upon:
ii. Either party may terminate this Agreement for convenience with 180 days of written notice to the other party at any time.
iii. The Developer reserves the right to discontinue a Product or version of a Product at any time. In this event, the Developer will announce an End-of-Life date on the Product website and provide email communication to the Customer. The End-of-Life date will apply 12 months after the announcement date. The Customer will provide bug fixes, maintenance releases, work arounds, or patches for critical bugs during the 12-month period. At the end of the period End-of-Support will apply and Customers will be required to upgrade to the supported version of the software or terminate the agreement. When the End-of-Life applies to a critical security issue, upgrades dates may be reduced to protect Customer data.
iv. Upon termination of this Agreement:
i. To the extent that there is an inconsistency between a provision in a clause in the body of this Agreement and a provision in a Schedule:
i. Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.
i. If anything in this Agreement is unenforceable, illegal or void then it is severed, and the rest of this Agreement remains in force.
i. is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
ii. Supersedes any prior agreement or understanding on anything connected with that subject matter.
iii. Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.
i. An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
i. The Developer may not assign or novate its rights and obligations under this Agreement without the prior written consent of the Customer.
ii. The Customer may assign or novate its rights and obligations under this Agreement without the Developer's consent.
i. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
ii. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
iii. A waiver is not effective unless it is in writing.
iv. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
i. Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.
ii. The Customer as the purchaser of goods and services pursuant to this Agreement, must pay all stamp duty and other government imposts payable in connection with this Agreement and all other documents and matters referred to in this Agreement when due or earlier if requested in writing by the Developer.
i. A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
ii. In addition to any other method of service provided by law, the Notice may be:
iii. A Notice must be treated as given and received:
iv. If otherwise delivered before 5 p.m. on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
v. An email message is not treated as given or received if the sender’s computer reports that the message has not been delivered.
vi. A Notice sent or delivered must be treated as validly given to and received by the party to which it is addressed even if:
vii. Any Notice by a party may be given and may be signed by its solicitor.
viii. A party may change its postal address for service or email address by giving Notice of that change to each other party.
i. This Agreement:
ii. Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.
iii. At end of contract, the Developer will provide the Customer with a CSV export of the Customer’s database before decommissioning the site.
i. The law of Queensland governs this Agreement.
ii. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Federal Court of Australia.