General Terms
Introduction
This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
Trinity Ecom PTY LTD (ABN:32638321614) trading as MyWineRack hereinafter referred to as MyWineRack. All services that MY WINE RACK may be contracted to produce or provide for Client signing agreement (referred to as CLIENT) will be subject to the following:
1. Authorisation
The CLIENT authorises MyWineRack to perform the services outlined in this agreement on the CLIENTS’ behalf, which may include, but is not limited to, accessing their website and website database, creating databases and applications, and submitting the project to app stores.
2. Agreement Scope and Period
Services supplied, costs and rates are limited to what is specifically set forth in this agreement and the proposal. Any additional services will require an additional agreement and proposal. We reserve the right to adjust our service and rates as deemed neccassary by My Wine Rack.
3. Costs and Fees
Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, colour printouts, laminating, illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to GST.
4. Production Schedules
Production schedules will be established and adhered to by both the CLIENT and MY WINE RACK. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.
5. Overtime
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 60% markup at an hourly rate. Overtime is defined as between 6.00pm - 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6. Payment
6.1. The CLIENT agrees to pay MyWineRack in accordance with the terms specified in each proposal/estimate. The CLIENT will be required to pay 100% of the development & setup cost before commencement of work. Unless otherwise specified, all subsequent balances due are payable upon completion of key stages of the project.
6.2. If the CLIENT fails to pay any invoice, MyWineRack reserves the right to withdraw the app and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied. MyWineRack will charge a late payment fee of 5% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.
6.3. In the event of cancellation of the project prior to completion, the CLIENT must pay MyWineRack a fee for work completed, based on the contract price and the expenses already incurred.
7. Confidentiality
MyWineRack will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
This obligation of confidence will cease to apply in relation to information that MyWineRack is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by MyWineRack of its obligations of confidence under this Agreement.
8. Subcontractors
MyWineRack reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.
9. Promotion
MY WINE RACK is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that MyWineRack reserves the right to use the CLIENT’s app, associated graphics and any unused ideas and development in the promotion of MyWineRack services
10. Copyright
The CLIENT is responsible for all trademarks, service mark, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials MY WINE RACK uses for this project. The CLIENT indemnifies MyWineRack against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
11. Project Copyright
11.2 MyWineRack reserves all rights over working and source files. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.
11.3 MyWineRack reserves all rights to license and release all software code including app templates developed under this agreement.
12. Software
12.1. MyWineRack makes extensive use of app development software and components to supply apps and services to the CLIENT.
12.2. The CLIENT indemnifies MyWineRack against any loss or damage arising directly or indirectly from any failure of software supplied to the CLIENT.
12.3. All software and components not developed by MyWineRack retain the original license and terms associated with them. MyWineRack cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms if applicable.
12.4 Any software based on a template, theme or that uses any 3rd party code or party plugins we cannot guarantee that the code is safe to use.
13. Force Majeure
MyWineRack shall not be deemed in breach of this Agreement if MyWineRack is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity of MyWineRack or any local, state, federal, national or international law, governmental order or regulation or any other event beyond My Company’s control (collectively, “Force Majeure Event”).
Upon occurrence of any Force Majeure Event, MyWineRack shall give notice to the CLIENT of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
14. Limitation of Liability
The services and the work product of MyWineRack are sold “as is.” In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“MyWineRack parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement.
In no event shall MyWineRack be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by MyWineRack even if MyWineRack has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
15. Termination
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, MyWineRack shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within fourteen days of the CLIENT’s written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by MyWineRack and MyWineRack shall own all rights to the work. The CLIENT shall assume responsibility for collection of all legal fees necessitated by default in payment. In the event of a termination the app will be pulled from the App stores and no longer exist.
16. Hosting
16.1. The CLIENT is required to pay MyWineRack the monthly hosting fees referred to in the proposal schedule to cover costs incurred by MY WINE RACK including software security, technical support and the provision of the CMS ‘Content Management System’.
16.2. The CLIENT may stop paying the hosting fees at any time.
16.3. If the CLIENT stops paying the hosting fees MyWineRack reserves the right to suspend the app immediately and suspension will remain in place until the hosting fees are again paid on a monthly basis by the CLIENT.
16.4. The app can only be held with Trinity Ecom Pty Ltd’s hosting service and cannot be transferred to another hosting provider, due to the nature of the app software used by MyWineRack.
17. Errors and Omissions
It is MyWineRack responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. However MyWineRack is not liable for errors or omissions. The CLIENT indemnifies MyWineRack against any loss or damage arising directly or indirectly from any errors and omissions.
18. Revisions
MyWineRack will provide two rounds of revisions of content after the submission of the content, before the app is completed. Extended revisions outside of this scope will be charged at additional rates.
19. Copy
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office, InDesign).
20. Images
20.1. Graphics and photographs are to be supplied in digital format to Trinity Ecom Pty Ltd. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
Schedule 1
Standard Costs and Fees: Refer "your investment“ App Design and Development fees: Refer "your investment"
App Hosting fees: Refer "your investment"
Definitions
As used herein and throughout this Agreement:
“Trading as” means that Trinity Ecom Pty LTD trades as MyWineRack, legally owns, manage and are authorised custodians of the brand. MyWineRack therefor trades under Trinity Ecom Pty Ltd company ABN: 32 638 321 614.
“Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
“Content” means all materials, information, photography, writings and other creative content.
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
“Deliverables” means the services and work product specified in the Proposal to be delivered by MY WINE RACK to the Client, in the form and media specified in the Proposal.
“Proposal” means the document which outlines the services to be provided by MyWineRack to the CLIENT and the applicable fees.
“Services” means all services and the work product to be provided to Client by MyWineRack as described and otherwise further defined in the Proposal.
“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
“App Software” means software which is used to develop and host the app.
“Hosting” means the ongoing work to keep the app functioning and secure. This includes, but is not limited to: data storage, backups, upgrades, software updates and access to the CMS (Content Management System).