A. The Customer wishes to engage the service provider to create the Design Works compliant with ShopFactory as per the customer’s order.
B. The Service Provider is an experienced website developer who specializes in providing Design Works compatible with ShopFactory software.
C. The Customer engages the Service Provider to provide a Design Works for ShopFactory
D. The Customer and the Service Provider have agreed to enter these Terms of Service on these terms and conditions.
THE PARTIES AGREE:
1.1 These Terms of Service starts with receipt of the payment for the order and continue until order fulfilment or until this agreement is terminated otherwise.
2. PROJECT SCOPE
2.1 The Customer will order and pay for ShopFactory compliant Design Works through the Service Providers online website. Payment is made upfront.
2.2 The Customer will provide information on the preferences for the design works by providing or referring to preferred samples which resemble the design which is to be achieved as well as other information such as colour preferences to enable the Service Provider to understand the Customers requirements. Based on these requirements the Service Provider will create the Design Works.
2.3 Upon completion by the Service Provider, the Customer will be provided with access to the design works for approval and to request revisions if required. In the event the Customer does not forward a written approval or a request for revisions within fourteen (14) days then the supplied Design Works are considered as finalized and as approved. Revisions must be on the following conditions;
(a) The requested revisions must be within the scope of this agreement, must match the functionalities of ShopFactory and must be within the originally defined preferences of the customer.
(b) The Customer is permitted to request up to two revisions, whereby the first revision may be a request for major changes to the initially supplied concept with clear instructions. The next revision may only be minor adjustments of the agreed design, such as changing colours, images and Font Styles. If the Design Works are a ShopFactory Template, then it is understood that the cost of the work is based on minimal HTML code or CSS changes, such as adjusting the height and width of various content areas.
2.4 The Customer may provide their own images and artwork at the Customers expense; however the costs to the Service Provider include the provision of five Stock Images. This cost is included and charged to the Customer whether or not the Customer utilizes these images.
2.5 The Customer will be required to upgrade to the most current version of ShopFactory to be able to use the template.
2.6 The parties agree that any variations to the Project must be in writing and initialled by a representative of each party.
2.7 Any website content which is not design related is expressly excluded from the Project Scope. The scope of this Project is limited to design only.
3. SERVICE PROVIDER’S WARRANTIES, REPRESENTATIONS & OBLIGATIONS
3.1 The Service Provider warrants and represents that it has all the necessary skills, competencies, training and experience to develop the design works for the Customer throughout the Term and that it will continue to do so.
3.2 The Service Provider warrants that the design works will not infringe the IPR of any person, including any copyrights.
3.3 The Service Provider warrants that the Design Works will work with ShopFactory Pro or Gold software versions of the major release version current at the time of the delivery, starting from the subversion current at the time of delivery onwards.
3.4 The service provider warrants that the Design work will be compatible with the versions of the most popular browsers as current at the time of delivery, namely Internet Explorer, Firefox, Safari and Chrome.
4. INTELLECTUAL PROPERTY RIGHTS (“IPR”)
4.1 All IPR in the Software together with supporting materials developed by the Service Provider under these Terms of Service are assigned to and vest in the Service Provider as such rights are created. This Clause survives the termination or expiry of these Terms of Service
4.2 The Service Provider indemnifies and holds harmless the Customer from any third party claim or action in relation to matters in this Clause. This Clause survives the termination or expiry of these Terms of Service.
4.3 The IPR of any image or design used in the creation of the Design Works remains with its creator or with the Service Provider; it may not be sublicensed, on sold or assigned on to any other party. The Customer is given an exclusive licence to use any such IPR only for the purpose which is being achieved through these Terms of Service.
5. FEES AND PAYMENT
5.1 The Customer will pay the Service Provider the all fees upfront for the development of the template.
5.2 Where there is a change in the Project during the Term instigated by the Customer, the Service Provider may at its discretion vary by increasing or decreasing the Fees to reasonably reflect such changes. The Customer may, within 7 days if it does not accept that variation, terminate these Terms of Service by Notice to the Service Provider. Such termination will take effect immediately and will not be a breach of these Terms of Service. From such termination the Customer will cease to be liable for any further Fees but looses all rights to fees already paid. This provision will continue to be enforceable notwithstanding termination.
5.3 Any additional changes to the design works which are requested by the Customer outside the scope of this contract or after approval as outlined in clause 2.3 will be charged at an hourly rate with a minimum of two hours applying. Any such changes will only be worked on once the original Project Scope has been completed.
6.1 Should the Customer cause a delay at any stage of the Project, the Customer will be responsible for any reasonable additional costs incurred by the service provider.
6.2 Should the Service Provider cause a delay of at least two weeks above the initially proposed time frame, then the Customer will be entitled to cancel the Project and request any monies paid to the Service Provider in relation to this agreement to be refunded.
6.3 Where a party is or is likely to be affected by a Force Majeure event, that party must immediately notify the other party of the fact, such Notice to include full particulars of the event, an estimate of its likely duration, the extent to which the event affects delay on that party’s obligations and the steps (if any) undertaken to rectify or minimise the delay.
7. LIMITATION OF LIABILITY
7.1 To the fullest extent permitted by law, the Service Provider expressly disclaims all implied warranties and conditions including without limitation implied warranties as to merchantability, fitness for purpose of the Software and materials.
7.2 To the fullest extent permitted by law, the Service Provider makes no representation or gives any warranty in respect of the provision of its services except that it will carry out the services competently, professionally and to the best of its ability having regard to the terms of these Terms of Service.
7.3 To the extent that any liability of the Service Provider cannot be excluded, the Service Provider’s liability is limited to either the supply of the services by the Service Provider under these terms and conditions again or the payment which was made by the Customer to the Service Provider under these terms and conditions. The Customer agrees they are not able to hold the Service Provider liable for any claims for loss of revenue.
8.1 Without limiting the operation of anything contained in these Terms of Service, the Service Provider indemnifies and holds harmless the Customer from and against any loss, liability, cost or expense that the Customer suffers directly or indirectly because of an IPR and/or moral rights claim in the Design Works and/or the supporting materials. This clause survives the termination or expiry of these Terms of Service.
8.2 The Customer indemnifies and holds harmless the Service Provider and promises to keep the Service Provider indemnified against any loss, claim, action, settlement, award, judgment, expense or damage of whatsoever kind or nature and howsoever arising that the Customer might suffer as a result of using the Design Works. This clause survives the termination or expiry of these Terms of Service.
9.1 Without prejudice to any rights the Customer may have at law, the Customer may terminate these Terms of Service immediately by Notice if the Service Provider is in breach of any term and such breach is not remedied within 14 day of receipt of such Notice.
9.2 The Customer has the right to terminate these Terms of Service if the Service Provider fails to deliver the Design Works within the announced time frame plus two weeks,
9.3 The Service Provider may terminate the Appointment by giving thirty (30) days notice to the Customer whether or not the Consulting Services have been completed and such termination will not be a breach of these Terms of Service and will not give rise to any claim for compensation or damages.
9.4 Where there is a change in control in the Service Provider’s company during the Term, the Service provider reserves the right to terminate these Terms of Service.
10. DISPUTE RESOLUTION
10.1 In the event of a dispute arising between the parties in respect of any right or obligation under these Terms of Service, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute.
10.2 In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of the dispute, then either party may apply to a third party dispute resolution centre for determination under the ADRoIT Principles.
11. GENERAL PROVISIONS
11.1 (Law and Jurisdiction) These Terms of Service is governed by and is to be construed according to the laws of the state of Victoria, Australia and the parties agree to submit to the jurisdiction of the Courts and tribunals of that Territory.
11.2 (Relationship) Nothing in these Terms of Service will constitute or be deemed to constitute a partnership, joint venture, lasting relationship or agency between the parties.
11.3 (Entire Agreement) The parties agree that these Terms of Service constitutes the entire agreement between the parties and any prior arrangements, agreements or representations are superseded on execution of these Terms of Service.
11.4 (Invalidity) If any provision of these Terms of Service is invalid under any law the provision will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary the invalid provision will be deleted from the Agreement and the remaining provisions will remain in full force and effect.
11.5 (Waiver) No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
11.6 (Implied Terms) Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being a term of these Terms of Service unless by law it cannot be excluded.
11.7 (Assignment) These Terms of Service may not be assigned by the Customer without the prior written consent of the Service Provider.
11.8 (Counterparts) These Terms of Service may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one instrument and Agreement provided that those counterparts have been exchanged.
12. SURVIVAL CLAUSES
12.1 Notwithstanding termination of this Appointment for any reason, all clauses of these Terms of Service that are expressly intended to continue to be binding and enforceable shall continue to be binding and enforceable. In addition, all obligations to pay any sum due prior to termination, keep Confidential Information confidential, keep Customer Confidential Information confidential, and all covenants not to compete, or solicit customers or employees and/or return and not use Intellectual Property or property of the Customer shall continue to be fully binding and fully enforceable.
13.1 Any provision of these Terms of Service which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be effective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability in such provision in any other jurisdiction.
14.1 These words and phrases have the following meanings:
“Approval” means formal acceptance as set out in Clause 2.3.
“Commencement Date” means the date of these Terms of Service.
“Force Majeure” means any act, circumstance or omission over which the Service Provider or the Customer could not reasonably have exercised control.
“Design Works” means the creation of Company Logos or Design Templates for websites created with ShopFactory including Website Themes, Page Styles, Product Styles and More Details Styles as defined by their functionality in ShopFactory and in the ShopFactory Developer Guide.
“Website Theme” is a ShopFactory compliant Website Template with the functions of a Website Theme as defined within the functionality of ShopFactory and in the ShopFactory Developer Guide and excluding page and product styles.
“Page Style” is a ShopFactory compliant Template for the page content with the functions of a Page Style templates as defined within the functionality of ShopFactory and in the ShopFactory Developer Guide.
“Product Style” is a ShopFactory compliant Template for the product display on a page with the functions of a product Style template as defined within the functionality of ShopFactory and in the ShopFactory Developer Guide.
“More Details Style” is a ShopFactory compliant Template for the product display on the “More Details Page” with the functions of the More Details Style template as defined within the functionality of ShopFactory and in the ShopFactory Developer Guide.
“Stock Images” are images from the websites istockphoto.com or fotalia.com or similar sites.
“Intellectual” Property Rights”/“IPR” means rights in all intellectual property including copyright and moral rights, patents and trademarks.
“Project” means the website theme that is the subject of these Terms of Service.
“Term” means the period set out in Clause 1 provided that the Term may be a shorter period if these Terms of Service has been lawfully and properly terminated by either party pursuant to these Terms of Service.
“Terms of Service” means this Terms of Service including the Schedules and any amendments/variations in writing signed by both parties.