1.
Definitions
1.1.
'Agreement' means this Software Development Agreement and includes the
Schedule.
1.2.
'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
Client, and
c. the terms of this Agreement.
1.3.
'Client's Specifications' means the specifications for the development of
the Software as set out herein.
1.4.
'Client's Site' means the address of the Client as specified in the
Schedule.
1.5.
'Force Majeure' means any act, omission or circumstances over which the
Provider could not reasonably have exercised control.
1.6.
‘Installation Date’ means the installation date specified in the Schedule.
1.7.
'Intellectual Property Rights' means any intellectual, industrial or
commercial property, or right of a proprietary nature, including:
1.7.1.
any patent, trade mark, service mark, or design;
1.7.2.
any copyright or work of authorship;
1.7.3.
any utility model, eligible layout right, or plant variety right;
1.7.4.
any business, trade or commercial name or designation, brand name, internet
website domain name, logo, symbol, source indication, or origin
appellation;
1.7.5.
any confidential information;
1.7.6.
any other industrial, commercial, agricultural, or extractive right derived
from intellectual knowledge or activity of any industrial, scientific,
literary or artistic nature or description, whether relating to any
manufactured or natural product, or otherwise;
1.7.7.
any legal action relating to any previous item;
1.7.8.
any licence or other right to use or grant the user, or to become the
registered proprietor or user of, any previous item; and
1.7.9.
any document of title, letters, patents, deeds or grant or other document
or agreement relating to any previous item.
1.8.
'Provider Fee' means the fees for software development to be calculated and
paid in accordance with the Schedule and this Agreement.
1.9.
'Provider Services' means the services to be performed by the Provider
under this agreement specified in the Schedule.
1.10.
‘Schedule’ means the schedule to this Software Development Agreement.
1.11.
'Software' means the computer program to be developed by the Provider
pursuant to this agreement; consisting of a set of instructions or
statements in machine readable medium only and any associated materials and
documentations.
1.12.
'Source Code' means the computer program instructions in human readable
format.
1.13.
‘Warranty Period’ means the warranty period specified in the Schedule.
Scope of agreement
1.14.
The Client will engage the Provider and the Provider will provide services
to the Client by performing the Provider Services in accordance with and
subject to this Agreement.
Charges and payment
1.15.
The Client will pay the Provider the Provider Fee specified in the Schedule
for the Provider Services.
1.16.
The Client will pay the Provider Fee within 14 days after the date of each
tax invoice for the amounts specified in the Payment Schedule.
1.17.
In addition to the amounts payable by the Client under clause 1.15, the
Client will pay a final payment at the completion of the Provider Services
for all fees and costs incurred in addition to the Provider Fee within 14
days after the date of a tax invoice.
1.18.
All fees and charges payable to the Provider under this agreement are
inclusive of GST (unless stated otherwise), 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.
1.19.
The Client will be in breach of this agreement if it fails to make any
payment within each applicable due date specified in this Agreement or in
any invoice issued in relation to this Agreement.
1.20.
If any payment owing to the Provider is not received by the Provider in
same day funds within 7 days of the due date, the Provider may give notice
to the Client of its intention to suspend further services or its remaining
obligations to the Client under this Agreement, and if payment has not been
made within 7 days thereafter, it may without further notice, do so.
Expenses
1.21.
If the Provider's Fee in the Schedule so specifies, the Client will
reimburse the Provider the amount of all expenses incurred by it in the
performance of its duties under this Agreement, including travel expenses
between the Provider's premises and the Client's Site, accommodation and
subsistence expenses, and all other expenses incurred or required to be
incurred by the Provider to promptly and efficiently provide the Provider
Services.
Title
1.22.
All Intellectual Property Rights (and all other rights, both proprietary
and personal) in and associated with the Software, any program code or any
Source Code reside in, are assigned to, and vest in (as applicable) the
Provider as such rights are created.
1.23.
Any Intellectual Property Rights in and associated with any program code
provided by the Client vest and remain vested in the Client.
Licence
1.24.
The Provider shall upon payment of all moneys owing pursuant to this
Agreement grant the Client a non-exclusive licence to use the Software
(including Source Code) for the following purposes:-
a. to use within the Client's organisation for the purposes as set out in
the Schedule;
b. to further develop and modify the original Source Code with the
Provider’s prior consent;
c. to provide a copy of the Source Code to third parties for the purposes
of hosting and development, with the Provider’s prior consent.
1.25.
The Client must not re-sell, lend, assign, distribute, licence, rent,
lease, or otherwise transfer the Software or Source Code for purposes other
than mentioned in paragraph (1.25(a)).
Source Code
1.26.
The Provider shall upon payment of all moneys owing pursuant to this
agreement provide the Client 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.
1.27.
The Client must not reverse assemble or decompile the Software and the
Source Code or in any way attempt to alter the Source Code without the
Provider’s prior consent.
Responsibilities of the Provider
1.28.
Subject to the terms of this agreement, the Provider will have the
following responsibilities during the term of this Agreement –
a. general advice concerning the initial development, operation and use of
the Software;
b. development of the documentation for the Software; and
c. reasonable training and instruction of the Client's personnel in the use
of the Software and the interpretation of the documentation.
1.29.
[not used]
Variation of Specifications
1.30.
If the Client wishes to vary the Client's Specifications, the Provider will
not be bound to agree, but the Parties may agree to changes on such terms,
including as to charges, as mutually agreement.
1.31.
Such variations must be in writing and signed by the Provider and the
Client.
Installation
1.32.
The Provider will install the Software or any component thereof on the
Designated Equipment on or before the Installation Date.
1.33.
The Client will give the Provider such assistance, including the provision
of personnel and equipment, as the Provider considers necessary to ensure
satisfactory installation.
Force Majeure
1.34.
The Provider will not be liable for any delay or failure to perform its
obligation if such failure or delay is due to Force Majeure (as determined
by the Provider).
1.35.
The Provider will notify the Client as soon as practicable of any
anticipated delay due to Force Majeure (as determined by the Provider). The
performance of the Provider's obligations under this Agreement will be
suspended for the period of the delay due to Force Majeure.
1.36.
If delays in performance under this Agreement due to Force Majeure exceed
30 days from the first date of delay, the Client may terminate this
agreement immediately by notice to the Provider. If the Client gives such
notice to the Provider -
a. the Provider will refund moneys previously paid by the Client under this
Agreement for which no services have been provided; and
b. the Client will pay the Provider immediately on demand all amounts owing
to the Provider in relation to services rendered and all costs and expenses
incurred by the Provider prior to termination by the Client under clause
1.38(a), for which no payment has been previously made by the Client.
2.
Warranty Period
2.1.
At the completion of the Provider Services, the Provider will fix any
defects in the Software if notice is given by the Client within the
Warranty Period
2.2.
The Provider will not charge for any work performed under paragraph 2.1
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 or
for a reason not related to the Provider Services;
c. the defect is found to be outside the control of the Provider, including
but not limited to defects in third party software.
Termination
2.3.
Without limiting the generality of any other clause in the Agreement, the
Provider may terminate this Agreement immediately by notice in writing if -
a. any payment due from the Client to the Provider pursuant to this
agreement remains unpaid for a period of 14 days after the first day of
suspension of services by the Provider or remaining obligations of the
Provider under this Agreement; or
b. the Client breaches any clause of this Agreement and such breach is not
remedied within 7 days after the date of such breach.
2.4.
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 or is unable to
pay its debts as and when they fall due;
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.
2.5.
On the termination or completion of this Agreement, howsoever occurring,
Client must -
a. if requested to do so, forthwith deliver up to the Provider all
documents, notes, and program code and all other property of the Provider
(whether tangible or intangible) provided to it by the Provider in
connection with the Provider Services, and all copies of the Software,
Source Code fragments and the Software documentation, and all such other
things to which the Provider may be entitled;
b. forthwith cease to use any special access privileges to access or
attempt to access the servers of the Provider or used by the Provider; and
c. on demand, immediate pay to the Provider all amounts owing to the
Provider under this Agreement, including all amounts that would have been
payable had all services been completed by the Provider under this
Agreement prior to termination of this Agreement, and the Provider will not
be liable to perform such services notwithstanding all applicable amounts
are due and payable.
Assignment
2.6.
Subject to paragraph 2.7 , 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.
Sub-contracts
2.7.
The Provider may sub-contract the performance of this Agreement or any part
of this Agreement, but it will remain liable to the Client for all its
obligations hereunder.
Other Services
2.8.
In the event that the Client engages the Provider to provide services going
beyond, or other than those for which there is express provision herein,
the Client will pay all fees and charges agreed in relation to those
services at the agreed times, and in the absence of agreement, reasonable
fees and charges (as determined by the Provider), and the terms of this
Agreement will apply with necessary changes in relation to such services.
Waiver
2.9.
No right under this Agreement will be deemed to be waived by the Provider
except if such a waiver is in writing signed by the Provider.
2.10.
A waiver by the Provider will not prejudice its rights in respect of any
subsequent breach of this Agreement by the Client.
2.11.
Any failure by the Provider to enforce any provision of this Agreement, or
any forbearance, delay or indulgence granted by the Provider to the Client
will not be construed as a waiver of the Provider’s rights under this
Agreement.
Entire agreement
2.12.
This Agreement constitutes the entire agreement between the parties for the
provision of Provider Services by the Provider to the Client. 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.
Headings
2.13.
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.
Severability
2.14.
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.
Governing law
2.15.
This Agreement will be governed by and construed according to the law in
Western Australia and the parties agree to submit to the non-exclusive
jurisdiction of the courts and tribunals of that State.
Notices
2.16.
Notices under this Agreement may be delivered by hand, registered mail, or
facsimile to the address of the parties specified in or notified pursuant
to this Agreement.
2.17.
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; and
b. in the case of a facsimile, upon proof of completion of transmission.
Confidentiality
2.18.
The parties' obligations under this clause will survive the termination of
this Agreement.
2.19.
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.
2.20.
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.
2.21.
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.
Intellectual Property Rights
2.22.
The Client warrants that any program code provided by it does not infringe
the Intellectual Property Rights of any person.
2.23.
To ensure continued compliance with Intellectual Property Rights, after
completion of the project the Client 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.
3.
Exclusions and Limitation of Liability
3.1.
If the Software when delivered is found to be defective, and the defect is
shown by the Provider to be solely due to work undertaken in the
development of the Software before the engagement of the Provider, the
Client will allow the Provider a reasonable opportunity to correct the
defect.
The Client indemnifies the Provider for any loss, costs, or damages
suffered by the Provider for any reason in connection with, or arising out
of any matter the subject of this Agreement.