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Terms and Conditions - Software Design & Development

THESE ARE THE STANDARD TERMS AND CONDITIONS REFERRED TO IN THE FOREGOING CONTRACT BETWEEN VADA COMPUTING PTY LTD AND ALL CLIENTS. UNLESS AGREED OTHERWISE, THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL VADA COMPUTING PTY LTD SOFTWARE DESIGN, WEB SITES AND WEB DESIGN.

1. DEFINITION OF TERMS

Vada Computing Pty Ltd, ABN 75 120 180 510, PO Box 242, Blackburn South Victoria 3128, aforesaid.
The Client - the entity which enters into a contract with Vada Computing Pty Ltd
Domain Name - the root address of a web site, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Downtime - time when the web site is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
Host - the company on whose system the web site physically resides.
Link, Hyperlink - a 'clickable' link embedded on a web page which may take the form of a graphic or text.
Search Engine - a web site which contains a directory of web sites on the Internet enabling users to find web sites by subject matter classification.
Web Site - a collection of web pages and associated code which forms an integrated presence.
The Work - the subject matter of the contract between the Client and Vada Computing Pty Ltd.

2. FEES

2.1 Fee Payable for web and software design

Unless an agreed payment schedule is in place, a non refundable deposit of 50% of the total fee payable under the contract is due immediately upon the signing of the contract. The remaining 50% shall become due when the Work is completed to the reasonable satisfaction of the Client but subject to the terms of Clause 4.3 Approval of Work and Clause 4.4 Rejected Work hereof Vada Computing Pty Ltd reserves the right not to begin the Work until the said deposit has been paid in full. For web design, the fee quoted in the contract does not include the cost of domain registration, or web hosting. Domain registration charges must be paid before the domain name is registered.

3. DISCLAIMERS

3.1 Third Parties

Vada Computing Pty Ltd can take no responsibility for services provided by third parties through us or otherwise, including the hosting of the client's web site, unless hosted with Vada Computing Pty Ltd, although Vada Computing Pty Ltd will endeavour to ensure that web site downtime is kept to a minimum.

3.2 Maintenance and Correction of Errors

Vada Computing Pty Ltd takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the web site or software after the Work has been completed. Errors (both technical and typographical) attributable to Vada Computing Pty Ltd will be corrected free of charge, but Vada Computing Pty Ltd reserves the right to charge a reasonable fee for correction of errors for which Vada Computing Pty Ltd is not responsible, including, but not limited to malicious modification of the web site or software by a third party and typographical errors contained in materials provided to Vada Computing Pty Ltd by the Client.

3.3 Extent of Work

Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the web site with Search Engines will be undertaken unless otherwise agreed with the Client.

3.4 Consequential Loss

Under no circumstances will Vada Computing Pty Ltd be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its web site or software. The Client should ensure that data is regularly backed up and that a contingency plan is in place to minimise possible losses as a result of web site or software failure.

3.5 Status and Duration of Offers

Proposals and offers are valid for a period of one month from the date issued, unless agreed otherwise. Vada Computing Pty Ltd is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.

3.6 Search Engine Listings

Vada Computing Pty Ltd does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not Vada Computing Pty Ltd who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new web site may never even appear on Search Engines at all. Vada Computing Pty Ltd does not control Search Engines' algorithms and huge shifts can appear daily, weekly and even hourly.

4. COMPLETION OF WORK AND PAYMENT

4.1 Completion of Work

Vada Computing Pty Ltd warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. Vada Computing Pty Ltd will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. Vada Computing Pty Ltd will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorisation from the Client.

4.2 Supply of Materials

The Client is to supply all materials and information required for Vada Computing Pty Ltd to complete the Work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client's failure to supply such materials leads to a delay in completion of the work, Vada Computing Pty Ltd has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client's failure to supply materials prevents progress on the Work for more than 21 days, Vada Computing Pty Ltd has the right to invoice the Client for any part or parts of the Work already completed.

4.3 Approval of Work

On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify Vada Computing Pty Ltd, in writing, of any unsatisfactory points within 14 days of receipt of such notification. Any of the Work which has not been reported in writing to Vada Computing Pty Ltd as unsatisfactory within the 14 day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the balancing payment under Clause 2.1 Fee Payable will become due. The Contract will remain in effect until all obligations have been completed in terms of this Clause.

4.4 Rejected Work

If the Client rejects the Work within the 14 day review period, or will not approve subsequent Work performed by Vada Computing Pty Ltd to remedy any points reported by the Client as unsatisfactory, and Vada Computing Pty Ltd considers that the Client is unreasonable in his repeated rejection of the Work, the contract will be deemed to have expired and Vada Computing Pty Ltd can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.

4.5 Payment

Unless agreed otherwise, upon completion of 14 day review period, Vada Computing Pty Ltd will invoice the Client for the 50% balancing payment in accordance with Clause 2.1 Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid by the Client within 30 days of the date that the invoice was issued.

4.6 Remedies for Overdue Payment

If payment has not been received by the due date, Vada Computing Pty Ltd has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 30 days after the due date, Vada Computing Pty Ltd has the right to replace, modify or remove the Web Site and revoke the Client's licence of the Work until full payment has been received. By revoking the Client's licence of the Work or removing the web site from the Internet, Vada Computing Pty Ltd does not remove the Client's obligation to pay any outstanding monies owing.

5. INTELLECTUAL PROPERTY

5.1 Offers and Proposals

Offers and proposals made by Vada Computing Pty Ltd to potential clients should be treated as trade secrets and remain the property of Vada Computing Pty Ltd. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from Vada Computing Pty Ltd. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.

5.2 Warranty by Client as to Ownership of Intellectual Property Rights

The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to Vada Computing Pty Ltd for inclusion on the Web Site or in the software. The conclusion of a contract between Vada Computing Pty Ltd and the Client shall be regarded as a guarantee by the Client to Vada Computing Pty Ltd that all such permissions and authorities have been obtained and that the inclusion of such material on the Web Site or in the software would not constitute a criminal offence or civil delict. By agreeing to these terms and conditions, the Client removes the legal responsibility of Vada Computing Pty Ltd and indemnifies the same from any claims or legal actions however related to the content of the Client's site or software.

5.3 Domain Name

Any Domain Name obtained will belong to the Client. The Client agrees to indemnify Vada Computing Pty Ltd, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.

5.4 Licensing and Ownership

Once Vada Computing Pty Ltd has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be granted a licence to use the software; or granted ownership of the Web Site and its contents. Vada Computing Pty Ltd assumes all content supplied by the client is free of copyright, and Vada Computing Pty Ltd takes no responsibility whatsoever for using copyrighted material on the site or in the software that has been supplied by the client.

5.5 Trade Secrets

Any code that is not freely accessible to third parties and not in the public domain, and to which Vada Computing Pty Ltd or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from Vada Computing Pty Ltd. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which Vada Computing Pty Ltd or their suppliers owns the copyright. Vada Computing Pty Ltd acknowledges the intellectual property rights of the Client. Information passed in written form to Vada Computing Pty Ltd, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.

6. RIGHTS AND RESPONSIBILITIES

6.1 Right to Terminate

Vada Computing Pty Ltd reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their Web Site, or any material is illegal, immoral or otherwise unacceptable.

6.2 Events Beyond the Control of Vada Computing Pty Ltd

Vada Computing Pty Ltd will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of Vada Computing Pty Ltd.

6.3 Supply and Pricing of Services

Vada Computing Pty Ltd reserves the right to use whoever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.

7. INTERPRETATION

7.1 Jurisdiction

This Agreement shall be governed by the laws of Country which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Vada Computing Pty Ltd and the Client. The said contract is void where prohibited by law.

7.2 Survival of Contract

Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.

7.3 Change of Terms and Conditions

These terms & conditions may change from time to time. The Client will be informed of revisions as and when they are issued.

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