All Services provided by HiTime (Exasites Pty Ltd T/As HiTime) to the Customer are subject to the following terms and conditions together with other agreements signed between the Customer and HiTime.
|
GENERAL |
| 1. Applicability and Definitions. This Agreement (save as for all previous technical specifications for Services/Products) supersedes all previous agreements and shall cover the entire subject matter of its content. These terms apply between the Customer and HiTime in relation to any project detailed on this document, or, unless subsequently explicitly replaced, to all agreements between the parties (“Specific Agreements”). “Modifications” are changes (which must be supported by consideration) contained within a Modification Note. “Modification Note” is any document including an email sourced from HiTime which declares itself as one. “Services” means any services provided by HiTime to the Customer under the Specific Agreements. “Products” means any software code or deliverables including any websites developed for or licensed to the Customer under the Specific Agreements. “Overall Agreements” means this agreement and all Specific Agreements. |
| 2. Restraint of Trade. Customer agrees not to hire, engage, solicit, employ, contract any of the employees or contractors of HiTime (or people who have been employees of HiTime within a 2 year period) nor make any attempt to do so for a period of five (5) Years from the date of any services being provided by HiTime to the Customer. This applies to Australia and the Customers Successors in law or associated entities. Should this limitation be held to be unlawful, then any maximum minimum period shall be substituted. |
| 3. Payment and Default. HiTime will provide invoices as per the Overall Agreements for fees under the Specific Agreements, which the Customer may elect to receive either by e-mail or hard copy. Invoices are due 7 days from invoice date. Accounts that remain unpaid 30 days after the date of the invoice will be in default and attract interest at the Victorian Penalty Interest Rate. Unless the Specific Agreements state otherwise half of the Fees are due upon signing the earlier of the Specific Agreements or this Agreement (“Sign Date”). The Customer may not use any fault or alleged fault in the Products to delay any payments of Fees. Payments made are totally non refundable under any circumstances even if paid by credit card. Where a Customer pays by credit card and the provider charges HiTime a fee, HiTime shall be entitled to pass on that fee to the Customer. |
| 4. Default. If the Customer in default HiTime may remove the Customers Products from its web space. This does not relieve the Customer of the obligation to pay any outstanding charges. Cheques returned for insufficient funds will be assessed a return charge of $15 and the Customer's account will immediately be considered to be in default until full payment is received and HiTime may elect not to perform its obligations under the Overall Agreements during this period. Customers with accounts in default agree to pay HiTime reasonable expenses, including any legal fees or collection fees from third-party agencies, incurred by HiTime in enforcing the Overall Agreements. |
| 5. General. No amendments or oral agreements are to be binding on the parties unless recorded in writing and signed by both parties, aside from Modification Notes and HiTime’s right to vary as detailed in this Agreement. The Overall Agreements are transferable with HiTime’s written permission to a single business successor of the Customer who is not a competitor of HiTime. In the event of any inconsistency between these Conditions and the Specific Agreements, these Conditions will prevail, unless specifically stated otherwise. The Customer will appoint no more than one individual at any one time to liaise with HiTime regarding the delivery of Services or Products. Any change of such individual may attract a charge. Decisions made by that person on the Products and effected by HiTime may not be rescinded by a future liaison person. |
| 6. Excluded Features. Specifically the Products do not include any feature which isn’t specifically stated in the Specific Agreements or Modifications, and without limitation do not include training or manuals, CRM or other applications. Unless otherwise stated the following shall apply: Only one login is to be provided for CMS, it will not be a breach of the Overall Agreements that any key staff of HiTime are unavailable provided there are no other breaches by HiTime. |
| 7. Variation. HiTime may agree to extend its obligations under the Overall Agreements only by either an agreement in writing between the parties or a Modification. Notices to HiTime must be sent via fax or mail. Notices to the Customer are to be sent to any of the main email contacts of the Customer or the registered address. HiTime may transfer the Overall Agreements to another entity, or subcontract part of its obligations. |
| 8. Commissions. Customer acknowledges that HiTime may pay commissions or fees to third parties or agents who have either helped with a sale or Customer acquisition or consulting. |
| 9. Indemnity. The Customer agrees to indemnify and hold harmless HiTime from any and all claims resulting from the Customer's use of HiTime Services or Deliverables, which cause damage to the Customer or any third party. HiTime makes no warranties of any kind, whether express or implied, for the services it provides. HiTime also disclaims any warranty of merchantability or fitness for a particular purpose. HiTime will not be responsible for any direct, indirect or consequential damages, which may result from the use of its services including loss of data resulting from delays, non-delivery or interruption in service. The Customer is totally responsible for backing up of any data or information and HiTime shall not be liable for any loss of data. The Customer acknowledges and agrees that HiTime cannot guarantee the absence of service interruptions including but not limited to those caused by Acts of God, the domain name system or other circumstances. In the event of any of the exclusions in this clause being held invalid by any aspect of the Governing Law, then HiTime’s liability shall be limited to either at HiTime’s discretion (a) replacement of the Deliverables (b) refund of the Fees. |
| 10. “Customer Obligations” are the requirements expected of the Customer being all the information reasonably required of the Customer for HiTime to develop the Products, and include any other obligations agreed in the Overall Agreements. Where HiTime delivers additional Services and Deliverables not specified in the Overall Agreements or any Modification, the Timetable shall be accordingly extended, and HiTime shall have no liability for the performance or delivery of such additional Services and Deliverables. |
| 11. Continuing Fees means all fees noted in this Agreement or any Specific Agreement which are of a recurring periodic nature. Unless stated otherwise Continuing Fees automatically renew for a further term unless the Customer cancels in writing at least 1 month prior to expiry. The customer consents to a further debit of credit card on this renewal. They are payable in advance. |
| 12. Timetable. The only timelines applicable on HiTime shall be an explicitly agreed one; if the Customer thinks HiTime is in breach of a timeline they will notify HiTime in a notice giving them 14 days. A timeline is only applicable on Exa where all Customer Obligations have been met, and there has been no extension by Customer of the scope of the project. |
| 13. Dependencies. HiTime shall not be liable for any breach of its obligations under the Overall Agreements where such breach has been caused by the lack of cooperation of any third party where that third party has a connection with the Customer. |
| 14. Fair Usage Terms. Outside of genuine support calls, the Customer is capped at 5 phone calls per week during professional set-up of their Web Page - calls over this will be charged at $95 per hour and all calls are deemed to be 15 minutes in duration. |
15. Governing Law. The Overall Agreements shall be governed by the laws in the State of Victoria, Australia, and the parties agree to the jurisdiction of the courts of Victoria for any dispute under the Overall Agreements.
|
WEB DEVELOPMENT |
| 16. Post-Placement Alterations. Web Pages are made to be updateable online by Customer via the “Content Management System” using the Customer’s log-in details. HiTime cannot accept responsibility for any alterations caused by the Customer or a third party occurring to the Customer's Web Pages once installed. Further, if HiTime is required to fix up problems caused by such alterations then the minimum charge is one hours labour at $95 ex GST per hour. Such alterations include, but are not limited to additions, modifications, or deletions. |
| 17. Test Platform. The Customer specifically acknowledges that it is sufficient that the Web Page is functional on a test platform running the latest version of Internet Explorer and the Microsoft operating system. |
| 18. Copyright. The Customer retains the copyright to graphics, logos, photos and trademarks provided by the Customer, and grants HiTime the rights to publish and use such material. All other Products including Custom artwork, graphics, logos, data bases, navigation systems, menu structures, know-how, programming code, source code, forms etc. and the Web Page as a whole remain the property of HiTime; HiTime has copyright to and reserves the right to reuse any such material on other sites it produces including content developed in consultation with the Customer. HiTime may grant the Customer rights to use such material in formats other than Web presentations if a separate agreement is entered into. Customer is permitted to use the Deliverables and Web Page as a commercial site for the period of the Continuing Fees at the domain nominated in the Specific Agreements. Customer warrants that it has all applicable copyrights over material supplied, and indemnifies HiTime against any claims of breach. |
| 19. Standard Media Delivery. Unless otherwise specified in the Specific Agreements, all text will be provided by the Customer in PC (not Mac) electronic format (ASCII text files delivered on disk or via e-mail or FTP) and that all photographs and other graphics will be provided in standard .gif, .jpeg or .tiff format. Additional expenses may be incurred and will be invoiced accordingly for corrective work, conversion of media or outside facility charges. Although every reasonable attempt shall be made by HiTime to return to the Customer any material provided for use in creation of the Customer's Web Page, such return cannot be guaranteed. |
| 20. Pages. HiTime has absolute discretion in determining what constitutes a page. Generally this is any combination of text and images etc. and is up to A4 in size (using standard font sizes). Web Pages are specifically built to be best viewed at 800x600 pixels resolution. |
| 21. Design Credit. A link to HiTime will appear as both a small type one line link or links and small graphic at the bottom of each Web Page. If a graphic is used, it will be designed to fit in with the overall site design. Customer agrees that their completed site or any part of it including statistics or other site metrics or logo may be used in HiTime portfolio or any other marketing form or document at HiTime’s discretion and authorises HiTime to make a factual statement that it has delivered services to the Customer. |
| 22. Flash. Flash shall only be provided if specifically agreed. If agreed then Customer acknowledges that Flash is a form of movie or artwork and a strict limit must be imposed on the number of hours HiTime will spend on such. HiTime will make best endeavors to ensure Customer is satisfied with any such Flash or movement but will invoice the Customer accordingly if extra work is required to meet Customer expectations. |
| 23. Right to Pull, Spamming. By signing this Agreement, the Customer agrees to give HiTime "on demand" access to the Customer's Products and further agrees that HiTime shall have the right to remove any Product for failure to adhere to the terms of this Agreement or any breach of any applicable laws or court orders, or the commission of any act reasonably deemed to be such. If the Web Page is hosted with a third party then Customer agrees to immediately remove such site upon demand. Customer warrants that it will not use any of HiTime e-mail or web servers for spamming or mass emailing nor use them as a contact point for any spamming or mass email. Spam is defined as any unsolicited email sent to multiple recipients where the Customer can not prove by its records that the receiver has specifically requested such emails. HiTime may seek to recover damages from any Customer that engages in such practices. |
24. Search Engines. Whilst HiTime takes every care to submit its Websites to major search engines, HiTime disclaims any warranty as to search engine optimization results.
|
