TERMS AND CONDITIONS
All capitalised terms used in these Standard Terms and Conditions and not otherwise defined have the meanings given to them in the Project Scope.
2. HOSTING AND TECHNICAL SUPPORT
(a) CRU will host the website on its server during the Term of this Agreement
(b) Updates to and management of CRU’s server will be the responsibility of CRU
(c) Email hosting will be provided by Client
2.2 Vulnerability scanning and penetration testing
(a) CRU will partake in regular vulnerability scanning and penetration testing of Clients live, staging and testing websites.
(b) If a vulnerability scan or penetration test identifies additional work that should be undertaken, Client may engage CRU to undertake such work, which will be billed separately at the Standard Hourly Rate.
(d) CRU does not warrant third party software or hosting or third party licenses that result in potential vulnerabilities in network devices including but not limited to firewalls, routers, switches, servers and applications. Client should refer to its agreement with third parties in relation to these issues.
(e) CRU will not be liable for any consequential loss as a result of a security, vulnerability or penetration breach but will act in good faith to assist the client if these issues arise.
3.1 Monthly Transaction Fees
(a) Client Agrees to pay the Monthly Fee each month during the Term for various Services including hosting, security certificates, updates of software, ticketed support and other support features.
(b) On or around the beginning of each month during the Term, CRU will invoice Client for the Monthly Transaction Fee
(c) Client will pay invoices on a date no later than 14 days.
(d) Transactional fees include shipping, taxes but not refunds.
(e) When Client annual transaction value exceeds $500,000, CRU can negotiate the fee structure to cover necessary upgrades to include a dedicated server and server management.
3.2 Additional fees
CRU will invoice Client for any requested and agreed Out of Scope work or Additional Services and/or training prior to delivery and at the Standard Hourly Rate (unless agreed otherwise) and such invoices must be paid within 14 days of the date of invoice. Any additional work that CRU are engaged to complete will be charged upfront for under $1000 of development cost. For over $1000 of development cost CRU will invoice 50% upfront with the balance paid upon completion of the development.
3.3 No set off or withholding
Client must pay the full amount of any invoice sent under this Agreement and may not set off or withhold any amounts from such payment.
3.4 Overdue payments
Overdue payments will incur interest at the Late Payment Interest Rate of 10%. Additionally, if payment is overdue, CRU may suspend its Services (including support) until all outstanding payments are made.
3.5 Applicable taxes
All costs listed in this Agreement are exclusive of applicable federal and state taxes, including relevant sales tax. Taxes will be added to each invoice and charged to Client at the time of billing.
4. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
4.1 Ownership and license to use IP
Once paid in full, the client owns the website in full, with the exception of CRU’s proprietary tools, specifically the Subscription and Marketing Automation tools. If this agreement is terminated, the website will be supplied to you fully functional, with the exception of the subscription tools and marketing automation tools and triggers. You will however have all data relating to the above tools such as subscribers, orders and segments.
4.2 Confidential information
Each party must treat as confidential and must not disclose, any information provided to it by the other party, including all information relating to Intellectual Property of the other party unless: (a) such information is in the public domain; or
(b) it is required by law to disclose such information (and then it must disclose only to the extent required by law).
5. REPRESENTATION AND WARRANTIES
5.1 Warranties by Client
Client hereby represents and warrants to CRU that:
(a) it is the lawful owner or rightful licensee of any and all images, logos, trademarks,trade names or other licensable intellectual property used in the Website;
(b) all content supplied by Client to CRU under this Agreement does not infringe upon the Intellectual Property of any third party and does not contravene any Australian laws; and
(c) it holds all necessary licenses to conduct its business and enter into this Agreement
5.2 No Implied Warranties
(a) to the extent permitted by law, CRU excludes all implied warranties and conditions relating to the Website, Goods and Services.
(b) CRU specifically disclaims any guarantees, warranties or other positioning or the levels or timing of Media Services including:
(i) costs per click;
(ii) click through rates;
(iii) conversions or other results for any ads; or
(iv) availability and delivery of any impressions, ads or otherwise
on third party sites or tools; and
(v) accuracy of data pulled from third party products (including Google Analytics) including reach, size of audience, demographics or other purported characteristics of audience. “Media Services” refers to third party media services including, without limitation, Google, Bing, Yahoo, Facebook, Twitter, eBay, LinkedIn, YouTube, Four Square, CC Media, Catalogue Centeral, Lasoo, Get Price, Shopping.com, Cliz Galore and other online advertising channels.
5.3 Limitation of Liability
(a) Any liability CRU may have for breach of this Agreement or breach of any implied warranties or condition is limited as determined by CRU in its sole discretion to:
(i) re-provision of Goods or Services by CRU to Client; or
(ii) payment for the cost of another provider to supply the Goods or Services to Client.
(b) Notwithstanding any other provision in this Agreement, CRU has no liability for loss or damage which arises directly or indirectly as a result of this Agreement or any Services provided by it to Client whether in contract, tort, for negligence or otherwise and whether that damage is direct, indirect, consequential or otherwise including loss of profits, lost opportunity or loss of page-rank or page indexing caused by search engine algorithm changes.
(c) Notwithstanding any other provision in this Agreement, and to the fullest extent
permitted by law, CRU is not liable:
(i) for any consequential, indirect or special losses of any kind (including, without limitation, loss of profit, loss or corruption of data, hosting or business interruption or indirect costs) suffered by Client or any third party in relation to this Agreement, the Website, the Goods or the Services; or (ii) if any way for any third party provided content or software that Client may upload, transmit, place, add or otherwise use in relation to the Goods or Services.
5.4 Limitation of Liability
Client agrees to indemnify and keep indemnified CRU for and against any loss, damage, costs, expenses or liability arising out of any breach by Client of this Agreement or arising out of Client’s illegal or negligent use or operation of the Website or anything produced by the Services. This indemnity survives termination of this Agreement.
6. FORCE MAJURE
(a) To the extent that an act outside of the control of either party including any act of
God, flood, drought, earthquake or other natural disaster, war, revolution or any other unlawful act against public order or authority, governmental restraint, or act or omission of third party suppliers such as web hosting providers, payment gateways, search engines and third party software suppliers or developers prevents or delays a party from performing an obligation under this Agreement (Force Majeure Event) that obligation is suspended as long as the Force Majuere Event continues.
(i) Notwithstanding clause 6
(ii) above, a Force Majeure Event does not relieve a party from making any required payments under this Agreement.
7. TERM AND TERMINATION
This Agreement commences on the Commencement Date and continues until terminated in accordance with this clause 7.
(a) Either party may terminate this Agreement:
(i) if a Force Majeure Event occurs and subsists for a period of 60 days or more; or
(ii) at any time after the delivery of the Website, by providing 30 days’ prior written notice of such termination to the other party.
(b) CRU may terminate this Agreement immediately by providing written notice of such termination to Client if:
(i) Client breaches this Agreement and fails to remedy such breach within 5 days notice in writing from CRU;
(ii) CRU is prevented or delayed from providing Services for a period of 30 days or more due to an act or omission by Client; or Client becomes insolvent.
(c) Upon termination of this Agreement:
(i) all outstanding payments that were due and payable prior to termination or which relate to Services rendered prior to termination must be paid immediately; and
(ii) CRU may erase or otherwise cancel any software or Intellectual Property provided to Client for which Client has not paid in full.
Notwithstanding any other provisions in this Agreement, The rights and obligations in clauses 4, 5, 6, 7, 8 and 9, and any other obligations, which are expressed to survive expiry or termination of this Agreement, will be deemed to survive the termination or expiry of this Agreement.
(a) A party claiming a dispute or disagreement in connection with this Agreement (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).
(b) When a Dispute Notice is given, the parties must promptly hold good faith discussions to attempt to resolve the Dispute.
(c) If the Dispute has not been resolved within 30 days (or other agreed period) after such discussions, then either party may refer the matter to a mediator chosen by CRU and located in Victoria.
(d) Unless otherwise stated in this Agreement or agreed in writing, the parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute. (e) Each party must pay its own costs of complying with this clause.
(a) This Agreement is governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the Courts of that State.
(b) All references to monetary amounts or “$” within this Agreement refer to AUD.
(c) All references to “days” or “business days” within this Agreement refer to days or business days in AEST.
(d) If any provision in this Agreement is found to be invalid or unenforceable, it will be severed from this Agreement and the remainder of this Agreement will be enforceable to the greatest extent permitted by law.
(e) This Agreement constitutes the whole of the agreement between CRU and the Client and supersedes any and all agreements, representations or statements made except for negotiated ongoing payments.
(f) CRU may sub-contract or otherwise arrange for any person or party to perform part of this Agreement or to discharge any of CRU’s obligations under this Agreement without the prior written consent of Client.
(g) Client may not assign any part of this Agreement to a third party without the written consent of CRU.
(h) Non-enforcement of any clause or provision of this Agreement does not constitute a waiver of the obligations contained in such provision or clause nor a waiver of any
breach of such conditions.