Terms and Conditions
These terms and conditions (Agreement) apply to the provision of any services by The App Development Co Pty Ltd (ACN 628 711 795) (“The App Development Company”, “App Dev Co”, we, us, our) to you (you, your, yourself, the client) from time to time (individually, a Service, collectively, the Services).
BY PURCHASING ANY SERVICE OR PRODUCT, YOU ARE DEEMED TO HAVE ACCEPTED AND ARE BOUND BY THIS AGREEMENT (INCLUDING ANY OTHER AGREEMENTS OR POLICIES THAT ARE EXPRESSLY INCORPORATED).
Solution, Service means the entire delivered work by us to you.
Development means the work performed by us as a service to you. This includes (not exclusively) the planning and generation of code, design, and documentation.
Support means the services offered to you in supporting our work during development and once development has been completed.
Maintenance means the optional service offered to you to maintain and support your solution after development has been completed.
Intellectual Property means source code, diagrams, graphics, and any other electronic computer files or hard copy documentation, system processes, procedures, and theoretical concepts.
2. Terms and Services
2.1 This agreement commences upon your first payment of any invoice date issued to you by us and terminates on the day notified by either party in accordance with the terms of this Agreement.
2.2 Services will be invoiced at pre-set milestones or upon the completion of agreed work. Failure to pay the invoice within the terms stated on the invoice will result in the ceasing of all Development, Support and Maintenance. Late fees may also be applied.
2.3 If you (or your end customer) wish to cancel an individual Service, you (or the end customer, as the case may be) must notify App Dev Co in writing before the renewal date.
2.4 No refunds are issued for services that have been paid for.
2.5 Upon request, an end customer may become a direct customer of ours. We will notify you of this request and will action the request if:
- you have provided your authority to proceed;
- you have not responded to our notification within 48 hours;
- your account has been suspended and/or terminated for non-payment or breach of our terms of supply.
2.6 If you wish to dispute an invoice, then you agree to do so in good faith and within 30 days of the invoice date.
2.7 In the event any collection action is taken by us to recover any overdue amount, any costs incurred by us in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges, or any other reasonable associated costs incurred) are payable by you and shall be recoverable by us as a separate debt.
3. License, Intellectual Property and Ownership
3.1 App Dev Co uses licensed software and tools to develop your solution. If you wish to develop the solution further yourself or with another developer you may need to purchase your own developer license.
3.2 Elements of work created by The App Development Co Pty Ltd may contain works subject to copyright not owned by The App Development Co Pty Ltd and relation to which a limited license has been granted to The App Development Co Pty Ltd for use in developing your solution. The App Development Co Pty Ltd will advise you in case of any ongoing licensing fees that may be incurred.
3.3 The ideas and concepts summarised in written documentation (including proposals for works), storyboards, flow diagrams, layouts and processes either in electronic or in hard copy remain confidential and the intellectual property of The App Development Co Pty Ltd.
3.4 When presented with a proposal or quote for works and you do not agree to proceed, you will have no right to use any confidential material or intellectual property provided by The App Development Co Pty Ltd without our express written permission.
3.5 The App Development Company does not claim to own any confidential information or intellectual property embodied in material provided by you where disclosure of such material is able to be demonstrated by you.
3.6 All confidential or intellectual property, data, materials, ideas, and concepts provided by you to The App Development Co Pty Ltd will not be given to any third party or used by The App Development Co Pty Ltd for any other purpose than what is required to provide our service to you.
3.7 The App Development Co Pty Ltd retains ownership of all intellectual property and copyright in all works prepared by The App Development Co Pty Ltd until receipt of the final development payment.
3.8 The App Development Co Pty Ltd will retain a copy of the works developed as a backup and in case any future development is required up to a period of 12 months from development completion or when the maintenance period expired, whichever is the latter. You may request in writing if you require The App Development Co Pty Ltd to destroy all backups before this expiry period.
3.9 In the unexpected circumstance that The App Development Co Pty Ltd is no longer able to complete the development all intellectual property and copyright of works created by The App Development Co Pty Ltd will be transferred to you upon payment of any outstanding invoices. You may then, at your discretion seek an alternative developer to complete the project. Any third party licenses or not transferred and you may be required to purchase licenses as required from those third parties.
4.1 YOU AGREE TO READ, COMPLY WITH, AND ENFORCE (AGAINST YOUR END-CUSTOMERS) THE TERMS (AS APPLICABLE TO THE SERVICES AND SOLUTION YOU HAVE PURCHASED). YOU MUST ENSURE THAT YOU AND YOUR END-CUSTOMERS ARE BOUND BY TERMS NO LESS RESTRICTIVE THAN THOSE CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, THE APPLICABLE PROVISIONS OF THE SOLUTIONS TERMS AND THIRD-PARTY TERMS).
4.2 You are responsible for:
- ensuring that you and each end-customer provides full, accurate and up-to-date information in relation to the Services (and that such information is updated as necessary);
- providing technical and customer support to your end-customers. In the event your end-customer requests any Service related information or support, we will first direct that end-customer to contact you (using the email address or contact details contained in your Account);
- arranging and obtaining, any and all intellectual property right consents, clearances and authorisations (including from any third party) necessary to ensure the ordering, provisioning and/or use of our Services does not infringe upon any third party intellectual property rights. This includes, without limitation, the provision of copyrighted materials, use of trademarks and/or logos; and
- (except to the extent we are supplying as part of a Service to you) the proper backup and protection of all your software and data, as well as the implementation and maintenance of firewalls and reasonable security measures (including without limitation, proper virus control).
4.3 You must ensure any promotional, advertising or other material(s) you distribute to your end-customers (in any format):
- does not contain any misrepresentations or warranties relating to us or our Services;
- complies with all relevant advertising standards and applicable laws (including without limitation, spam laws); and
- does not contain any offensive, misleading, derogatory, infringing or unacceptable content.
You agree that you will cease distributing any promotional, advertising or other material(s) which we believe, in our sole discretion (such discretion to be exercised in a reasonable manner), do not comply with any of the above criteria.
4.4 All content and data stored on our services by either you or your end-customer do not contain:
- anything depicting illegal activities
- anything that has been or would be refused classification
- anything that has been or would be classified as X18+
- anything that has been or would be classified as R18+ must be protected by a user verification system to prevent minors from accessing it
4.4 Failure to comply with any obligations under this clause 4 will constitute a material breach of the Agreement by you.
5. WARRANTIES / DISCLAIMERS
5.1 You represent and warrant that:
- you are authorised to enter into this Agreement, act on behalf of your end-customers in respect of the Services, and provide any required consents, clearances and authorisations under this Agreement to us;
- you will comply with all applicable laws relating to your performance under this Agreement (including without limitation, your use of our Services), and will not be involved in any activity which may directly or indirectly bring us or third party supplier into disrepute; and
- you will act in good faith when dealing with us and utilising our systems and/or Services, and will promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreements (and the transactions contemplated by it).
5.2 We shall use reasonable commercial endeavours to provide continuing availability of this website, all applicable online management systems and our services. We will minimise any downtime or interruptions to the availability this website, all applicable online management systems and our services.
5.3 To the maximum extent permitted by law, all other conditions, warranties and guarantees expressed or implied by any legislation, the common law, equity, trade, usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded. We make no warranty, express or implied, that (i) the Services, access and use of our systems, or information received by any party through use of our Services or systems, will be uninterrupted, error-free, virus-free, timely, secure, accurate, reliable or of any particular quality or standard, or (ii) any terms and conditions made available to you (or your end-customers) through our systems or our website are valid, enforceable or comply with all applicable laws. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service or access to our systems.
5.4 Certain provisions of the Competition and Consumer Act 2010 and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions or mandate certain statutory guarantees. To the extent that they are not permitted to be excluded, our liability for breach of such conditions, warranties or guarantees and your sole and exclusive remedy in relation to such breaches shall be limited to:
- in the case of software or other goods under this Agreement, at our option: (i) replacing or repairing that software or those goods, or supplying of equivalent software or goods; or (ii) paying the cost of replacing or repairing software or goods or of acquiring equivalent software or goods; and
- in the case of Services under Agreement, at our option: (i) supplying the Services again; or (ii) paying the cost of having the services supplied again.
7.5 We specifically disclaim any and all warranties, representations, terms and conditions related to or in connection with the products, services and performance of third parties, regardless of whether you (or your end-customers) are aware that any such product, service or performance is provided by a third party.
6. Liability and Indemnity
6.1 To the maximum extent permitted by law and subject to clause 5.4, you agree that we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement.
6.2 Other than liability accepted by us in clause 5.4, our total liability for loss or damage of any kind not excluded by clause 6.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement shall not exceed an amount equal to the Fees paid by you to us in the preceding six (6) months for that Service.
6.3 You agree to indemnify, keep indemnified and hold us harmless from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by us in respect of any claim (i) by a third party arising in connection with this Agreement (except to the extent such a third party claim arises as a direct result of our breach of this Agreement), and/or (ii) arising in connection with your breach of this Agreement.
6.4 The damages payable by one party to the other party under or in connection with this Agreement will be reduced to the extent that the act or omission giving rise to liability to pay those damages was caused or contributed to by that other party.
7.1 We may immediately suspend your Account, or the provision of Services, where you fail to comply with any term(s) of this Agreement (including without limitation, complying with payment terms and any Service Terms (as applicable)).
7.2 We will not be liable in any way for suspension of your Account or the provision of Services (including any non-performance of Services)
8.1 We may terminate this Agreement immediately and without prior notification if:
- you are in breach of any term(s), conditions or obligations in this Agreement and (if the breach is capable of remedy) the breach has not been remedied within fourteen (14) days of notification from us setting out the breach and requiring it to be remedied;
- you, or your end customers, are using our Services or Solutions that are deemed to be illegal, have illegal intent, or in breach of local and international law.
- you dispose of the whole or part of your assets, operations or business other than in the normal course of business (except for purposes of a re-organisation or reconstruction);
- you cease to be able to pay your debts as they become due, have an administrator appointed or cease to carry on business; or
- you are subject to an event of force majeure in excess of sixty (60) days.
8.3 On termination of this Agreement:
- all outstanding Fees become immediately due and payable by you. Subject to the preceding sentence, any claim we have, you will be entitled to repayment of any unused prepaid balance in your Account. There are no refunds or credits for recently purchased Services in the event of termination of the Agreement; and
- end-customers with active services will be transferred into direct retail accounts with us.
8.4 In the event a third party supplier ceases its supply of any services to us (which are, or form part of, a Service to you), we will use reasonable commercial endeavours to honour the remaining period of your then-current Service term. However, to the extent any Service is detrimentally affected as a result of any third party supplier ceasing or varying its services, we will not be liable for any resulting delays, faults or inability to perform our obligations to you under this Agreement in respect of any such impacted Service. We will endeavour to notify you of any anticipated impacts as soon as practicable.
In addition to general Account, Billing and Service communications, we may, from time to time, issue email notifications relating to our Services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into this Agreement, you consent to us sending you email communications. You may unsubscribe from these communications at any time by notifying us in writing or by clicking the unsubscribe link provided within the communications. You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.
10. Data Protection
10.2 You acknowledge that Data will be processed by us or our suppliers, subcontractors, related corporations or agents; and may be transferred outside the jurisdiction of Australia (or in which you are based). By providing or giving access to Data, you warrant that you have complied with (i) the Privacy Law, or (ii) the applicable rules and legislation in the jurisdiction you operate in, and that you have obtained the necessary consent of any employees or third parties (including without limitation, any end-customer) that you may be acting on behalf of.
10.3 We will not keep Data longer than is necessary for the purposes for which the Data was collected or for which it is further processed. The Data collected by us will not be processed in a manner that is incompatible with the purposes for which it was obtained. You may at any time request to see the Data and amend same if required.
10.4 We agree we will take reasonable precautions to protect Data from loss, misuse, unauthorised access or disclosure, alteration, or destruction.
10.5 If you provide third party login details to allow us to configure said third party services on your behalf, we will take all precautions but are not responsible for any misconfiguration, data error or fault caused.
11. Our Services
11.1. You agree that in the provision of our services by us we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and content, provided to us by you.
11.2. You are responsible for keeping a copy of any existing data or service which we may replace pursuant to the provision of new services including all databases, hosted files and solutions.
11.3. We are not responsible for the contents of any solution we develop for you, and upon publication you must satisfy yourselves that the solution will comply with all applicable laws, and codes of practice governing the use of software and related services. This includes the intellectual property and copyright ownership of all material that you have provided to us. We are similarly not responsible for your subsequent use of the solution and services and your compliance of various commonwealth and state legislations.
11.4. All solution content must be provided by you within 1 calendar month of invoice (project commencement). If your data is not supplied within 1 month, we reserve the right to place your project on administrative hold. If no data is supplied within 2 months of invoice, the project will be cancelled and subject to cancellation fees.
11.5. You must provide complete feedback within 7 calendar days during design concept and production review. If no feedback is provided within this time, we reserve the right to move forward with the project, assuming no changes have been requested and that work is accepted in its current form. Any changes requested past this time are subject to current quoted hourly rate per hour or part thereof.
11.6. You may request an Administrative Hold of your project for up to 6 months. A cost may be involved. We will stop working on the project until you advise us that you are ready to move forward. If the project is placed on hold for more than 6 months, we will terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
11.7. If you are unhappy with you any design or concept, you may request additional layout concepts, at a cost of current quoted hourly rate per layout, with full payment required upfront.
11.8. Once your solution has been published, we will review and repair any pre-existing code errors and/or bugs in the solution if reported within 30 days of publishing. Any cosmetic changes or alterations, or code errors reported outside of this time period will be subject to additional charges at our standard commercial rates of our current quoted hourly rate per hour or part thereof.
11.9. We warrant that the solution functions to the level agreed upon at point of sale only for the server configuration where development takes place. We cannot be held responsible for errors or functionality loss if the solution is published and hosted on an environment that does not match the development server specifications.
11.10. There are no refunds or credits available to template based design services. Any template based design service sold as part of a package deal is not transferable or redeemable for cash or other services.
12.1 Although The App Development Co Pty Ltd performs extensive testing and checking of works prepared, it is your responsibility for all final checks. Including (but not exclusively) all grammatical and numeric display and data, functions, equations, and resulting calculations.
12.2 Maintenance for your solution may be purchased at a minimum period of six months after project completion.
12.3 If maintenance is not purchased within 30 days of project completion, the service will no longer be available to you.
12.4 All maintenance requests are to be logged via the creation of a support ticket using our online help desk system. Tickets are processed from oldest to newest based on the level of priority.
12.5 Maintenance covers the following inclusions:
- Software bugs and logic errors
- Database administration and management
- Minor updates to existing features and components to enable the app to function as designed
12.6 Maintenance does NOT include:
- New features, components, logic changes or updates
- End user support, training, installation
- Third-party support
- Installation of the solution as another or replacement instance
13.1 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications.
13.2 We may update the terms of this Agreement by giving you notice of the change or posting new versions online. The period of notice required to be given depends on the nature of the change. If:
- the change will benefit you or have a neutral impact on you, we may make the change effective immediately and without advance notice by posting a general notice on our website as outlined above;
- the change is required to comply with any law or requirement of any regulatory body, we will provide a reasonable period of notice (such period to be as reasonably practicable);
- the change is required to preserve or safeguard the security or integrity of any network or system we use to provide services to our customers or to maintain any accreditation we are required to have, we will make the change effective immediately and will provide notice through one or more of the methods outlined above; and
- for all other changes, we will also give you at least thirty (30) days’ notice.
13.3 Where a party exercises all due care and diligence, that party will not be liable for any delay or failure to perform obligations under this Agreement (other than an obligation to pay money or ensuring end-customers have accepted terms no less restrictive than those contained in this Agreement) if the delay or failure is due to any cause beyond its reasonable control.
13.4 Neither party may assign its rights or obligations under this Agreement without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that we may assign this Agreement to a successor in connection with any merger, acquisition, or sale of all or substantially all of our business or assets to which this Agreement relates.
13.5 The relationship of the parties is that of independent contracting parties. Nothing in this Agreement may be considered or interpreted as constituting the relationship of the parties as that of partners, channel partners, joint ventures or principal and agent.
13.6 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver.
13.7 This Agreement is governed by, and construed in accordance with, the laws of the state of Queensland, Australia, and the parties submit to the exclusive jurisdiction of the courts of that State.