Hosted Software Agreement
Aspedia Australia Pty Ltd ("Aspedia") has developed software known as the Aspedia Customer Relationship Management (CRM) System and the Aspedia Content Management System (CMS) known as AspediaWEB.
The Customer wishes to use the hosted version of that software and may require assistance in configuring the software. Aspedia agrees to license the Customer to remotely access and use the hosted version of the software and provide associated services for that software on the terms and conditions specified below.
AGREEMENT:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the contrary intention appears:
1.1.1. "Access Keys" means any certificates, usernames, passwords or other security mechanisms issued to the Customer by Aspedia in order for the Customer to access the Hosted Software;
1.1.2. "Agreement" means these Aspedia Hosted Software and Services Terms and Conditions, and the Order Form;
1.1.3. "Confidential Information" means information that by its nature is confidential, is designated by a party as confidential, or which the recipient knows or ought to know is confidential including, which in the case of Aspedia includes information about the Hosted Software that is not publicly available, and in the case of the Customer, the Customer Materials and Customer Data;
1.1.4. "Configuration Services" means services to configure the Hosted Software in accordance with the Specifications (if any);
1.1.5. "Customer Materials" means all text, images, settings, and other materials provided directly by the Customer, for use in connection with the Hosted Software, or otherwise used, or incorporated by Aspedia into anything produced by Aspedia, in providing the Configuration Services. Customer Materials does not include any information, designs, processes or ideas introduced by Aspedia for use in a project, this Intellectual Property will remain the explicit property of Aspedia.
1.1.6. "Force Majeure" means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.
1.1.7. "Hosting Period" means the period commencing on the date of signing the Order Form and continuing for:
(a) the hosting time commensurate with the Package selected by the Customer; or
(b) where the hosting time bas been expressly stated in Order Form, the hosting time as expressly stated.
1.1.8. "Commencement of Hosting Charges" means that charges for hosting services are due from:
(a) a specific date expressly specified on the order form;
(b) upon the issuing of a client user name and password to allow access to either a development or complete version of the website; or
(c) the issuing of project completion signoff documentation by Aspedia, which means that the actual development activities of the project have been completed by Aspedia, the project is hosted on Aspedia Development Servers and is awaiting go live signoff by the client. Whichever comes first from (b) or (c) will apply.
In (b) and (c) above, sites may not be live to the external general public on the internet, but are still hosted on Aspedia Development servers and are available for access by clients via the internet using a specific Development URL, user name and password to login.
1.1.9. "Hosted Software" means the hosted object code version of the Aspedia Customer Relationship Management (CRM) System, Aspedia Content Management System or Aspedia Database System provided or developed by Aspedia and includes all modifications and additions made by or on behalf of Aspedia to such software from time to time;
1.1.10. "Intellectual Property Rights" means copyright, trade mark, design, patent, semiconductor and circuit layout rights whether registered or not and including any rights to register such intellectual property;
1.1.11. "Order Form" means the order form completed by the Customer which forms part of these terms and conditions;
1.1.12. "Package" means the hosted package selected by the Customer as indicated in the Order Form;
1.1.13. "Specifications" means the specifications provided by the Customer and agreed between the parties for configuring the Hosted Software;
1.1.14. "Customer Data" means the data created by the Customer during the Term whilst using the Hosted Software, which ;
1.1.15. "Term" means the term of the license as specified in clause 2. 1.;
1.2. In this Agreement, unless the contrary intention appears:
1.2.1. the clause headings are for ease of reference only and shall not be relevant to interpretation;
1.2.2. a reference to a clause number is a reference to all its subclauses;
1.2.3. words in the singular number include the plural and vice versa;
1.2.4. a reference to a person includes bodies corporate and unincorporated associations and partnerships;
1.2.5. a reference to a clause is a reference to a clause of this Agreement;
1.2.6. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
1.2.7. the recitals to this Agreement do not form part of the Agreement;
1.2.8. monetary references are references to Australian currency.
2. TERM
2.1. This Agreement commences upon the date specified in the Order Form and will continue until the expiration of the Hosting Period.
2.2. Use of the Hosted Services by the Customer is deemed acceptance by the Customer of the terms in this agreement.
3. RIGHTS OF USE AND ACCESS
3.1. Aspedia grants the Customer a non-transferable, non-exclusive license to use and access the Hosted Software during the Hosting Period.
3.2. The Customer must only access the Hosted Software through the login mechanism provided on Aspedia's website, using the Access Keys provided by Aspedia.
3.3. The Customer is responsible for obtaining and maintaining at its own expense all software including internet browser software, hardware and communication links necessary to remotely access via the website and use the Hosted Software.
3.4. The Customer must not:
3.4.1. use the Hosted Software in an unlawful manner;
3.4.2. use it to send or distribute any messages, materials or content that may be considered to be unlawful.
4. RISK
4.1. The Customer acknowledges that it is responsible for determining the suitability of Hosted Software for its purposes.
4.2. Aspedia does not make any representations or warrant that the Hosted Software will meet the particular needs of the Customer.
5. DATA STORAGE
5.1. While Aspedia will use all commercial reasonable endeavours to ensure that the Customer Materials, and Customer Data as hosted by Aspedia, are protected from unauthorised access during the Term of this Agreement, the Customer acknowledges that:
5.1.1. Aspedia is not obliged to maintain backup copies of the Customer Materials and Customer Data during the Term of this Agreement; and
5.1.2. to the extent permitted by law, Aspedia will not be liable (whether in contract, tort including negligence, statute or otherwise) for any unauthorised access, misuse, corruption or loss of any of the Customer Materials or Customer Data.
6. CONFIGURATION SERVICES
6.1. Aspedia will carry out Configuration Services for an additional cost to be agreed between the parties.
6.2. Configuration Services will be carried out with all due skill and care and in a professional and competent manner.
7. CUSTOMER MATERIALS
7.1. Where Aspedia is providing Configuration Services, the Customer will deliver or make available to Aspedia, the Customer Materials required to undertake those services in a timely manner and in any event, in a manner that ensures that Aspedia shall have the necessary time to meet any project or other time schedules agreed between the parties.
7.2. The Customer grants a royalty free license to Aspedia to use and reproduce the Customer Materials for the sole purpose of providing the Hosted Software and associated services contemplated by this Agreement.
7.3. The Customer warrants that the use and reproduction of the Customer Materials by the parties as contemplated by this Agreement will not infringe the intellectual property rights of any third party.
8. PROTECTION OF ACCESS KEYS
8.1. The Customer is responsible for maintaining the confidentiality of the Access Keys and for all access and use of the Customer's account whether or not authorised by the Customer.
8.2. The Customer must take all reasonable security measures to ensure that the Access Keys are not disclosed to any person, other than to those Customer employees designated by the Customer to use such Access Keys.
9. PAYMENT
9.1. The Customer will pay the Charges specified in the Order Form within 7 days of invoice. Unless specified otherwise in the Order Form, access to the Hosted Software will not be provided to the Customer until the Charges have been paid in full.
9.2. The Charges specified in the Order Form are inclusive of GST.
9.3. Any pre-existing monthly hosting clients that have not transferred by 31 October 2011 to automated billing e.g. direct debit or credit card payments will incur an additional paper administration and processing fee of $5 ex GST per invoice.
9.4. The Customer will be liable for any GST payable on a taxable supply (as that term is defined in A New Tax System (Goods and Services Tax) Act /999) made by Aspedia. The Customer will pay such GST at the same time it pays the Charge for such taxable supply.
9.5. All credit card payments are processed through a merchant facility under the business name Aspedia Australia Pty Ltd.
9.6. Non-payment of an invoice will result in a late payment fee of $35.00 per month, to cover administrative and collection costs. In addition to this if an outstanding payment is more than 28 days overdue then Aspedia reserve the right to suspend online services until full payment is made. This will incur an administration fee of $300 for reconnection of services.
9.7. WEBSITES: Payment Milestones/Instalments are usually detailed within your Proposal/Order Form. If this is not included in your proposal there are 3 default Milestones that apply as follows:
- Project Commencement - 40% of the total project cost due on signing of the contract
- Design - 30% of the total project cost due on the 14th day of the month following contract signoff
- Scoping and Commencement of Development - 30% of the total project cost due on the 14th day of the month following the design payment instalment.
Payment Terms are strictly 7 days from invoice.
9.8. RECURRING PROJECTS: Recurring services and webmaster project payments will be invoiced 30-60 days in advance of the service delivery depending on the service type with strict 7 days payment terms applicable.
9.9. GENERAL: To make payment easy for you, Aspedia supports Visa and Mastercard credit card (or American Express with a 5% additional fee), company cheque or direct deposit (bank details are BSB: 014 240 and Account No: 498 960 892) for the initial deposit payments and final development payments, and either credit card or direct debit for the ongoing hosting and management fees. You will be required to complete an authorisation form for either of these ongoing monthly options
9.10. PAYMENT TERMS: Payment terms for all payments are strictly 7 days from date of invoice.
9.11. PAYMENT DEFAULTS: Should a credit card payment bounce when processing, a 2nd attempt will be made in the following 24-48 hours. If a second bounce occurs, our Accounts Manager will contact you in relation to payment processing. Should this arise a $30 administrative processing fee will be charged to you.Should payment not be received immediately upon contact with our Accounts Manager, your website development or hosting (if the site is live) will be suspended until the payment issue is rectified.
9.12. PAYMENT DEFAULTS FOR SITES IN DEVELOPMENT: In the case of a site in development, in addition to the payment default fee as mentioned in 9.10 above, the website development will be suspended and removed from the Aspedia Development Schedule. Therefore, no further action taken will take place on the site development until payment is made in full. When full payment has been received, the development project will then re-enter the development queue and be placed at the end of that queue. Subsequent work will then be scheduled according to development resource availability (which could be a 4-6 week delay).
9.13. PAYMENT DEFAULTS FOR LIVE SITES: Where a site is live and payment is not received by the agreed date, Aspedia reserves the right to deactivate the site and charge a $300 reconnection fee prior to re-connection. Reasonable payment terms will be negotiated should the client contact Aspedia to discuss these arrangements.
10. INTELLECTUAL PROPERTY
10.1. Subject to the rights of third parties, the Customer acknowledges that Aspedia owns all intellectual property rights in the Hosted Software and that except as expressly specified in this Agreement, the Customer has no license or rights to access or use the Hosted Software.
10.2. Except to the extent permitted by an applicable law that cannot be excluded by Agreement, the Customer is not permitted to reproduce, distribute, sub-license, transmit, give access to, reverse engineer or decompile the Hosted Software.
10.3. Aspedia acknowledges that the Customer and its licensors own all intellectual property rights in the Customer Materials.
10.4. Subject to clause 10.3, all intellectual property rights in anything produced by Aspedia in carrying out the Configuration Services ("Work Products") will remain the property of Aspedia in respect of those Configuration Services and the Hosted Software.
10.5. The Customer grants Aspedia a perpetual, royalty-free and non-exclusive license to reproduce the Customer's trademark, business name and other mark or logo which designates the Customer's business, for the purposes of indicating the Customer as a current or past client of Aspedia.
11. CONFIDENTIAL INFORMATION
11.1. Subject to clause 11.3, the parties:
11.1.1. will not disclose to a third party or use the other party's Confidential Information, without the prior written consent of the other party; and
11.1.2. will take all reasonable steps to ensure that their respective employees, agents and contractors do not use or disclose to a third party such information.
11.2. A party's obligations of confidence under clause 11.3 does not extend to information which:
11.2.1. becomes public knowledge through no fault of that party;
11.2.2. is already in that party's possession prior to disclosure by the other party of that information;
11.2.3. is independently developed by the party without the use of Confidential Information;
11.2.4. is received by that party from a third party who had a right to disclose such information; or
11.2.5. the party is legally compelled to disclose.
11.3. Aspedia may:
11.3.1. share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by Aspedia to the extent reasonably necessary in order for those services providers to provide services to Aspedia; and
11.3.2. disclose that you are a customer of Aspedia for marketing and advertising purposes.
12. COOPERATION
12.1. The parties will promptly sign all documents and do all things necessary to give effect to the terms of this Agreement.
12.2. The Customer will provide all reasonable assistance and cooperation required by Aspedia in order for Aspedia to perform its obligations under this Agreement.
13. SUSPENSION AND TERMINATION
13.1. Aspedia may terminate this Agreement immediately by notice in writing to you if the Customer is in breach of any of clauses 3.2, 3.4, 8, 9, 10.2, 11 or 21.
13.2. Either party may terminate this Agreement immediately by notice in writing where the other party has failed to rectify a breach within 7 days' notice requiring such breach to be rectified or the other party becomes subject to any form of insolvency administration.
13.3. Aspedia may, as an alternative to termination, suspend the Customer's access to the Hosted Software until the relevant breach has been rectified.
13.4. 30 days written notice is required should a client wish to cancel:
- their hosting agreement (after the expiry of that agreement); or
- any other services provided or managed by Aspedia.
13.5. If Aspedia is contacted by anyone other than the customer directly, regarding modifications to products or services, the customer must confirm in writing that Aspedia has the authority to work with that person, and in what capacity.
14. CONSEQUENCES OF TERMINATION
14.1. Upon termination:
14.1.1. each party must immediately return to the other party, all Confidential Information and other materials owned by the other party (including any copies), or where such materials are stored electronically on the party's equipment, erase such materials; and
14.1.2. the Customer must immediately pay the Charge for the Hosted Software license where Aspedia has commenced hosting that software for the Customer and for any Configuration Services performed in accordance with this Agreement prior to termination.
14.2 Early Termination of Contract
14.2.1. On receiving early termination notice from the customer, Aspedia will provide a statement of the total outstanding fees owed be the client for the full term of the signed contract and will debit the existing billing account to finalise all payments.
14.3 Copy of Website Software
14.3.1. INCLUSION: If requested within 7 days of termination notice from the customer, and for the fees stated in 14.3.2, Aspedia will create a encrypted copy of the clients website including branding materials, My SQL database and the Open Source Drupal CMS. Aspedia reserve the right to remove all Aspedia owned software modules from this copy.
14.3.2. FEE: The client will be charged 3 hours labour at the standard Aspedia hourly rate for the provision of this service and is not required to make this copy available to the client until after payment has been successfully received. A Client Termination Application Form and full payment must be completed before this activity will be undertaken.
14.3.3 DISCLAIMER OF WARRANTY WHEN TERMINATING SERVICES AND RECEIVING A COPY OF A WEBSITE: Software is provided "AS IS", without warranty of any kind, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. the entire risk as to the quality and performance of the software is borne by you. Should the software prove defective, you and not Aspedia Australia assumes the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of the agreement. Some states do not allow exclusions of an implied warranty, so this disclaimer may not apply to you and you may have other legal rights that vary from state to state or by jurisdiction.
14.3.4 LIMITATION ON LIABILITY WHEN TERMINATING SERVICES AND RECEIVING A COPY OF A WEBSITE: Under no circumstances and under no theory, tort, contract, indemnification or otherwise, shall Aspedia Australia be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will Aspedia Australia be liable for any damages, even if Aspedia Australia shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to your export controls.
15. IMPLIED TERMS
15.1. To the extent permitted by law, all conditions or warranties, which would otherwise be implied, are hereby excluded.
15.2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.
16. LIMITATION OF LIABILITY
16.1. Aspedia's liability in respect of this Agreement, including any goods or services provided pursuant to this Agreement, to the extent it is not capable of being lawfully excluded as specified in this Agreement, is limited to:
16.1.1. where the liability arises 1l'om detective goods or services provided by Aspedia or its contractors, or a failure by Aspedia to provide goods or services in accordance with this Agreement, the re-supply or rectification of the defective or non-complying goods or services; or
16.1.2. in all other cases, the Charges paid by the Customer under this Agreement.
16.2. In no event will Aspedia be liable (whether in contract, tort including negligence, statute or otherwise) for any indirect, consequential, special or punitive damages, or for any third party claims, loss of data, loss of time, loss of profits, loss of savings, loss of contracts, loss of revenue, loss of interest or loss of goodwill, which may be suffered or incurred by the Customer arising in any way from the use of the Hosted Software or any associated good or services provided by Aspedia pursuant to this Agreement or otherwise resulting from any act or omission of Aspedia.
17. INDEMNIFICATION
17.1. The Customer fully indemnifies Aspedia for any costs (including solicitor and own client costs), expenses, losses, claims or liability ("Damages") incurred or suffered by Aspedia directly or indirectly arising from:
17.1.1. a breach by the Customer of this Agreement;
17.1.2. the Customer's use of the Hosted Software (unless the Damages have arisen as a result of a third person claiming that the Hosted Software infringes that person's intellectual property rights); or
17.1.3. the Customer Materials in any way whatsoever, including any costs of liability incurred as a result of any claims, proceedings or demands made or brought against Aspedia by any client of the Customer.
17.2. Aspedia fully indemnifies the Customer for any costs (including solicitor and own client costs), expenses and liability incurred under any final judgment in proceedings brought by a third party against the Customer which determine that the Customer's use of the Hosted Software in accordance with this Agreement constitutes an infringement of that third party's intellectual property rights.
18. DISPUTES
18.1. In the event of any dispute arising between the parties in relation to this Agreement ("Dispute"), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.
18.2. A party will give the other a notice of Dispute in connection with this Agreement. A representative from each party, with unfettered authority to resolve the Dispute, must use all reasonable endeavours to resolve the Dispute within 10 days of a notice of Dispute being received.
18.3. If the representatives are unable to resolve the Dispute within 10 days, the Dispute will be referred for mediation in Brisbane, Queensland with a mediator approved by the Australian Commercial Disputes Centre, or its successor. The mediation will be governed by the rules and guidelines agreed by the parties, or failing Agreement, the rules and guidelines set by the mediator (whether or not in conjunction with both parties).
19. FORCE MAJEURE
19.1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other then payment obligations) if such delay is due to Force Majeure.
19.2. If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
20. VARIATION
20.1. This Agreement may not be varied unless in writing and signed by both parties.
21. ASSIGNMENT
21.1. This Agreement may not be assigned by the Customer without Aspedia's prior written consent. However, in the event of a sale or transfer of the Customer's business to a third party, Aspedia will not unreasonably withhold consent provided the Customer supplies Aspedia with any information about the proposed assignee reasonably requested by Aspedia.
22. WAIVER
22.1. No right under this Agreement shall be deemed to be waived except by notice in writing signed by the party waiving the right.
22.2. A waiver by Aspedia will not prejudice Aspedia's rights in respect of any subsequent breach of the Agreement by the Customer. Any failure by Aspedia to enforce its rights under this Agreement, or any delay or indulgence granted by Aspedia to the Customer, will not be construed as a waiver of Aspedia's rights.
23. CONTINUATION
23.1. Those terms of this Agreement capable of having effect after termination will survive termination, including without limitation clauses 10, 11, 16 and 17.
24. SEVERABILITY
24.1. If any term, or part of a term, of this Agreement is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.
25. NOTICES
25.1. Notices under this Agreement may be delivered by hand, by mail, by facsimile, or by email to:
25.1.1. the Customer - using the contact details provided in the Order Form;
25.1.2. Aspedia at:
Contact Name: Mike Whitehouse
Office Address: Suite 5.01 441 Logan Road, Stones Corner 4120 Australia
Postal Address: P.O. Box 441, Stones Corner 4120 Australia
Fax number: +61 7 3394 8226
Email: mikew@aspedia.net
or using such other contact details as notified to the other party in accordance with clause 25.1 from time to time.
25.2. Notices will be deemed to be given:
25.2.1. in the case of hand delivery upon receipt by an officer or authorised representative of the receiving party;
25.2.2. in the case of posting, 2 business days after dispatch;
25.2.3. in the case of facsimile, upon successful completion of transmission received on a business day at the recipient during business hours, or otherwise at the commencement of the next business day; and
25.2.4. in the case of email, upon successful receipt of the email of the recipient's mail server on business day or the recipient during business hours, or otherwise at the commencement of the recipient's next business day.
26. ENTIRE AGREEMENT
26.1 This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, Agreements, statement and understandings, either verbal or in writing.
27. COUNTERPARTS
27.1 This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all which taken together with constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged (which may include a facsimile copy of the Agreement in counterparts).
28. JURISDICTION
28.1 This Agreement shall be governed by and construed in accordance with the laws of the Queensland and the parties agree, subject to this Agreement that the Courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Agreement.
29. WARRANTY
29.1 Aspedia provides a 12 month warranty for all software solutions delivered. If you identify a problem with the functionality within this timeframe where the software is not functional as documented in your original Functional Design Brief we will resolve the issue absolutely free of charge regardless of the time it takes us to complete the fix.
29.2 This warranty excludes external software updates that impact the site and unsupported browser related updates as they are out of the control of Aspedia.
29.3 This warranty also excludes breakages that are user related. We ask that if you are unsure on how to make changes on your website that you contact us for support so that we can assist you to undertake the changes correctly or alternatively undertake the changes on your behalf at reasonable market rates.
30. THIRD PARTY SITE UPDATES
30.1 Aspedia has agreed to license the Customer to remotely access and use the hosted version of the software and provide associated services for that software on the terms and conditions specified on the Aspedia website.
30.2 If the client allow access to the hosted version of the software by a third party or for a third party to upload any software, subject to any applicable law which cannot be excluded, Aspedia makes no warranties or representations regarding the quality, accuracy, merchantability or fitness for purpose of the goods or services available from a third party. Your obtaining of goods or services from these persons is at your own risk. You indemnify Aspedia against all liability, loss, damage, cost and expense arising from or relating to your obtaining goods or services from a third party.
30.3 To the extent permitted by law, Aspedia accepts no liability in respect of such third party access to the hosted version of the software and Aspedia provides no further warranty.
30.4 Aspedia will continue to provide support at our discretion and this work will be charged at our standard hourly rate. Should Aspedia be required to undertake any corrections, fixes, updates to your site after work has been performed by a third party, our standard hourly charge will apply for the time taken to complete these corrections, fixes, updates.
