Spyk Software Pty Ltd (‘Spyk’)
Level 20, Tower 2
201 Sussex St
Sydney NSW 2000
ABN: 17 122 837 530
Client Name (‘the client’)
Client Address Line 1
Client Address Line 2
City State PostCode
Phone:
Fax:
ABN:
The client authorises Spyk to provide the resources suitable for the project. Work requested by the client will be performed by Spyk.
Terms & Conditions
This contract is governed by the laws of NSW, Australia. The terms and conditions contained on this document supersede any previous terms and conditions.
Limited Liability
In no event shall Spyk or its suppliers be liable for any accidental, consequential, incidental or indirect damages of any kind (including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or of the inability to use the software. In no event shall Spyk's liability for any claims whether in contract, tort or other theory of liability exceed the purchase price of the subject products or services, unless such limitation of liability is otherwise prohibited by law.
Copyright
The intellectual property rights, copyright and company trade secrets of Spyk (conceived July 1 2006) vested in all software products, upgrades, dual-media software, hard-copy or electronic manuals and documentation are vested in Spyk, which reserves the right to use the software or material, or any part of it in other applications and for its own use.
Development Work Credit
In the event Spyk performs web development services, the Client acknowledges and will ensure that: (a) Spyk receives a permanent credit on the Site (including, without limitation, any alteration, modification or subsequent use of the Site) which acknowledges Spyk as the developer of the Site; Unless otherwise agreed in writing credit shall be " Developed by Spyk Software" in a suitable position of each page of the Site. This text will provide a permanent link to www.Spyk.com; (b) Spyk may claim credit in its own promotional material for the development of the Site; and (c) the Client will remove the credit within 24 hours of receiving a notice from Spyk to do so. In the event Spyk performs web or other software development services, Spyk reserves the right to develop and publish a case study on the work performed.
Hourly Work
Spyk may agree to undertake work on an hourly rate basis and may provide an estimated time to complete this work. Such estimates are not binding and all hours designated as performed will be charged at the agreed rate. If during the course of such work Spyk determines that the job will require substantially more hours than estimated Spyk will advise the customer who may then choose not to complete the task. In this case, all hours spent will be charged to the customer. In an hourly work agreement, the initial meeting with the customer will be conducted by Spyk at no cost. Subsequent meetings are considered as specification time and will be charged at the agreed rate. The minimum time chargeable for on-site work is 2 (two) hours per person per visit. The minimum time chargeable for off-site work is 15 (fifteen) minutes per person per request.
Pre-Paid Work
Spyk may offer a more competitive rate to those clients pre-paying time in blocks of 40 hours per person on the project. Pre-paid rates become effective upon the day of payment. Rates revert to standard if pre-payment is not made prior to work commencing, or not so made for second or subsequent prepaid invoices in respect of work past the previously prepaid work. We recommend that you process payment within 24 hours of receiving a new invoice to ensure that the prepaid discount is maintained. Unused prepaid credit expires 12 months from the date of issue of the invoice. No refund will be made for unused prepaid credit.
Fixed Price Work
Spyk may agree to perform certain work or provide a software product for a fixed price in accordance with an agreed specification. In this case, the specification is binding and additional or previously unspecified work will be to the customer's account. A fifty percent payment is required prior to commencement, and the balance payable upon completion of work.
Spyk conducts all development and testing in an environment with a default configuration. Delays resulting in any deployment problems caused by custom software, hardware or settings on the client’s servers are not covered in a fixed-price contract.
Requests for Work
Work requested by the Client (including employees or representatives of the Client), in written, electronic, or verbal form, is authorised by the Client. The Client may choose to work through a "Company-Champion." If so, the Client must inform Spyk of this decision in writing. Subsequent to this advice the Company Champion has sole authority to request billable work.
Uninvited Solicitation
Direct or uninvited solicitation of a Spyk employee by the client is prohibited unless authorised in writing by Spyk. The client warrants that will the client solicit the employee, thereby breaching the prohibition, the client will pay damages to Spyk of an amount proportionate to 21% +GST of the total remuneration package offered to the employee plus liquidated damages of 4 (four) weeks pay +GST of the total remuneration package.
Warranty
A 30 day warranty begins upon delivery of any fixed price job. No warranty applies to work done on an hourly basis, this includes bug fixing. Spyk and its suppliers disclaim all other warranties, either express or implied, including, but not limited to implied warranties or merchantability and fitness for a particular purpose, with regard to the software, the accompanying written materials, and any accompanying hardware.
Bugs
A reproducible coding error that causes an unexpected defect, fault, flaw, or imperfection in a computer program. In other words, if any Spyk does not perform as the developers intended, it is most likely a bug. - Any unspecified feature or modification is not a bug, and will be reviewed for addition to a future release at the developer's discretion.
- You can tell it is a bug when:
- It is able to be reproduced
- The application crashes to code (runtime errors should be handled or avoided). This does not include bugs in third party products (e.g. Blue screen of death, or crashing in a third party data grid that we cannot control)
- The application displays incorrect values
- The application is missing specified functionality that was agreed in the Mock-ups or specification
Examples of what is a Bug:
Examples of what IS included in a fixed price contract (i.e. bugs). These are primarily technical (rather than business logic) errors made by the developer. Technical workarounds because of unforeseen limitations of technology are covered by a fixed price contract.
- A sum total is negative instead of positive because the developer used the wrong operator (plus instead of minus) to calculate the running balance. (This is a bug because it crashes to code)
- The application crashes because it doesn't check that a connection is valid before running a stored procedure. (This is a bug because it crashes to code)
- The output HTML in the application is not correctly formatted, and does not display in the specified browser (e.g. Internet Explorer 5). (This is a bug because it displays incorrect values and crashes to code)
- The fixed price contract says that the converted VB.NET Windows Forms application has "comparable" or the same functionality as Access. The original application uses Docmd.SendObject (i.e. uses Outlook), which has the brokers "from" address. The converted application uses reporting services (as recommended by the developer). However, this always has the same "from" address - and functionality has been lost. The modifications to use a web service for the "from" address are covered by the fixed contract. (This is a bug because it is missing specified functionality)
- Defaults are in the UI mock-ups, but they are not in the final application (this is a bug because it displays incorrect values)
Examples of what is NOT a Bug:
- Any problem caused by software or an application not written by Spyk.
- The customer requirement was not included in the user interface mock-ups/specifications.
- The client decides that they don't like the look of the current form even though it is the same as shown in the specification and wants the buttons at the bottom of the form instead of at the top.
- The original specification states that the total price excludes GST, but it really should have included GST. This is a change to the specification, and is not included in the contract.
Source Code Ownership
The Client is granted a non exclusive, transferable, perpetual Australian right and license to use, deploy and modify the software within the Client's group of companies for the Client's own internal purposes. Spyk reserves the right to use generic code from other projects as part of the Client's project. Spyk reserves the right to use generic code from the Client's project in future projects. Some projects contain Spyk Framework code that is common to other projects. The Client has access to the source code of the Spyk Framework at the end of the development, royalty free.
Services of all Notices
Services of all notices shall be sufficient if delivered or sent by any form of email (preferred), facsimile, or post (standard, certified or registered) to either party's business address.
Testing
The client agrees that prior to a version being submitted to the client, the Spyk developers will:
- Perform an internal "Test Please" (aka "Alpha Testing" e.g. only that pages or forms load, not checking the business rules)
- Then send a "Test Please" to the client (aka "Acceptance Testing" to check the business rules)
Training & Documentation
Training is charged in half day or full day sessions. Documentation, if required, is at additional cost. If documentation has not been specifically estimated or quoted, it will not be supplied. All custom documentation, including additions, deletions, and amendments is to the customer's account.
Support
Software will be supported either under an Hourly Basis, Maintenance Support Agreement or on a Per Issue basis.
Cancellations by Client
If any hourly job is cancelled by the client after commencement, Spyk will charge for all hours up to that point in time. If an hourly job is cancelled by the client, any pre-paid work not fully completed will not be refunded; however the remaining balance will be credited to the clients account for future utilisation. If any fixed price job is cancelled by the client, Spyk will retain the initial fifty percent of pre-paid value. Any further hours completed will be charged to the client as a proportion of the quoted price based on hours completed to that point in time.
Cancellations by Spyk
Spyk reserves the right to terminate any previously agreed project specification for fixed price work without prior notice. Spyk will charge on a pro-rata basis for any work completed. Spyk reserves the right to terminate any previously purchased pre-paid work blocks without prior notice. In this case, the client will be refunded for hours not completed as a proportion of the pre-paid blocks purchase value. Spyk reserves the right to terminate any ongoing service contract including, but not limited to hosting and database updates, with fourteen days notice. In this case, any paid unexecuted services will be refunded as proportion of the charged price based on percentage of specified project completed.
Credit Terms
The customer agrees to keep within the credit terms of 7 days and the credit limit of $20k + GST. The customer agrees that Spyk can pause work if either of these are exceeded. Spyk reserves the right to take legal action to recover debt. Spyk reserves the right to withhold source code until invoices are paid in full. The customer has 7 (seven) days from date of receipt of an invoice to query invoice or timesheet. The customer abrogates forfeits any right of reply after this time.
Interest
Spyk reserves the right to charge interest on all overdue accounts (including fees and disbursements) at a rate of 14% per annum compounded daily. Overdue accounts are deemed to be those accounts that remain unpaid after 7 days from the date of invoice for services or products provided by Spyk.
Credit Card Details
Spyk retains the right to store credit card details on file.
Deadlines
Spyk may choose to estimate the completion date of a project. While we will endeavour to meet all deadlines, we do not offer any guarantees, and Spyk is not liable for losses suffered due to a project being completed after the estimated completion date.
Equipment
Spyk is not liable for any equipment failures be it Spyk's equipment or equipment on the client site.
Viruses
While Spyk endeavours to have all its computing systems virus-free, the Client is expected to have current virus protection, and Spyk is not liable for any accidental infection of client computing systems.
Expenses
Spyk will travel to work on-site. Based on an 8 hour working day, travel inside the Sydney Metropolitan area is not charged. With respect to work conducted outside the Sydney Metro area:
- Travel is billable - The first half-hour of travel is free and half the standard hourly rate is charged for any subsequent hours, door-to-door.
- The client shall organise and pay for ordinary expenses, such as hotel, airfare, taxis or transportation. Note: when booking airfares, all fares must be flexible, and with QANTAS where possible.
- The client shall organise AUD$60 + GST per person per day for meals if not provided.
Note: We use the Metropolitan area, as defined by the council areas in the Sydney Inner (SI) and Sydney Outer (SO) regions listed by the Department of Local Government http://www.dlg.nsw.gov.au/dlg/dlghome/dlg_regions.asp?regiontype=0
Goods and Services Tax ("GST")
All prices quoted whether on an hourly basis or a fixed price basis are exclusive of GST unless otherwise stated. In addition to the amounts quoted the client must pay GST on those amounts (if applicable). This will increase the quoted price by 10%. GST is payable by you at the same time as the client pays the Spyk invoice.
Severability
Each of the above clauses is severable and is enforceable separately. If one or more clauses are deemed unenforceable, this does not affect the validity of the rest of the contract.
Spyk Pty Ltd
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Client Company Name
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