These terms are effective to all Proposals accepted as and from May 2016.
The following terms apply to all goods and services supplied in circumstances where there is no current Master Services Agreement (MSA) in place between Balance Internet and the client.
In these conditions Balance Internet means Balance Internet Pty Ltd (ABN 95 130 025 393) and its officers, employees and agents and you means the person(s) purchasing the Goods or Services from Balance Internet under the Proposal to which these conditions accompany, or wishing to enter this agreement in order to purchase Goods or Services from time to time.
1 PRICE, FORMATION AND SCOPE OF AGREEMENT
1.1 Subject to anything to the contrary in the Proposal: (a) the price for the provision of Goods or Services is Balance Internet’s standard list price for them; (b) the Proposal may only be accepted within 14 days of its date of issue; (c) if you accept the Proposal, our agreement commences on your acceptance; and (d) all prices quoted are exclusive of all taxes including goods and services tax.
1.2 Where a Proposal references this agreement; it governs all Purchase Orders placed or goods and services supplied pursuant to that Proposal. Cancellation of any work following acceptance of a Proposal must be agreed to by Balance Internet and will result in a sum equivalent to the work completed to the date of notification becoming due and payable by you.
2 INVOICING AND PAYMENT
2.1 Balance Internet will issue invoices to you upfront, at the start of UAT (user acceptance testing) and upon live launch of your Project/Services/Works. Where an estimated price or a minimum sum is stated in the Proposal or Estimate you will be invoiced according to the following milestones:
(a) 50% of the greater of the estimated price or the minimum sum on commencement and acceptance of the Proposal. This sum is not refundable once paid;
(b) 40% of the greater of the estimated price or the minimum sum upon commencement of the UAT stage of the project. Once Balance Internet have released the project and deliverables over for testing and acceptance this is payable.
(c) 10% of the greater of the estimated price or the minimum sum on launch of the Project live. This amount is payable upon “going live” and must be paid in order for any issues identified in the warranty period to be deployed;
In the case of Express Projects or Change Requests you will be invoiced accordingly to the following milestones:
(a) 50% of the greater of the estimated price or the minimum sum on commencement and acceptance of the Proposal. This sum is not refundable once paid;
(b) 50% of the greater of the estimated price or the minimum sum on launch of the Project live. This amount is payable upon “going live” and must be paid in order for any issues identified in the warranty period to be deployed;
You must pay Balance Internet all amounts specified in each of Balance Internet’s invoices at the address and time specified in the invoice (or within 14 days if no time is stated). Time is of the essence in relation to all payments of money to Balance Internet under this agreement. You must not make any deductions of any nature from any amounts you owe to us. Balance Internet may charge you interest at the Interest Rate on any overdue amount compounded daily.
2.2 If a minimum sum is specified in the Proposal as being payable over a minimum period of time and you wish to cancel the further supply of Goods or Services under the Proposal, or otherwise terminate this agreement, you must notify Balance Internet of your intention to cancel or terminate, and within 7 days of this notice, pay Balance Internet any unpaid sums due at the date of your notice and all minimum sums that would have been payable under the Proposal if no cancellation or termination occurred, until the end of the minimum term. Cancellation or termination under this clause will not be effective until Balance Internet is paid this sum in full.
3 PROPERTY AND RISK
3.1 Balance Internet retains title in and ownership of all Goods it supplies until Balance Internet has received payment in full for the Goods by you.
3.2 Balance Internet may repossess any Goods if you breach any of these terms and conditions. You must do all things reasonably incidental to allow Balance Internet and its agents to repossess any Goods pursuant to this clause or to inspect the Goods, including allowing them to enter onto any property you own or control.
3.3 Risk in the Goods passes to you on delivery.
3.4 You consent to Balance Internet effecting a registration on the PPSR (in any manner Balance Internet considers appropriate) in relation to any Security Interest in any Goods arising under or in connection with this Agreement and you agree to provide all assistance reasonably required by Balance Internet to facilitate this.
3.5 You waive your right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
3.6 You acknowledge that if Balance Internet’s interest under this Agreement is a Security Interest for the purposes of the PPSA:
(a) that Security Interest relates to the Goods and all Proceeds of any kind; and
(b) this Agreement is a Security Agreement for the purposes of the PPSA.
4 DELIVERY AND ACCEPTANCE
4.1 Delivery of the Goods or Services occurs at the time Balance Internet makes the Goods available for collection and notifies you of this fact and the location from which they may be collected or performs the Services.
4.2 You must inspect or test the Goods or Services as soon as possible after delivery or performance. Where the Goods or Services are not in accordance with your order you must notify Balance Internet in writing of that fact and your reasons within 7 days of delivery. If you do not give any notice under this clause you waive any right to reject them and you must pay for the Goods or Services in accordance with these terms. You cannot refuse to accept Goods or Services merely because they are not delivered by any given date or dates.
4.3 The delivery and acceptance criteria for inspecting and testing of works outlined in the proposal is governed by clause 6.
5 INSTALLATION AND WARRANTY
5.1 Balance Internet will install the Goods and will supply the Services at the time and location specified in the Proposal and if not specified, at a time and location to be agreed. You expressly acknowledge that the matters listed as either ‘out of scope’ or that are otherwise excluded from the scope of Goods or Services in the Proposal, are not included in the pricing expressed in the Proposal. Unless it is expressly included as in scope in the Proposal, Balance Internet is under no obligation to provide these out of scope goods or services to you under this agreement. For example, unless it is expressly included in a Proposal (and without limiting the categories of work that are potentially out of scope if not referenced in the Proposal) , testing, themes, extensions, plugins, integrations, training, strategic consulting, content production, platform and server configuration, payment gateway configuration, delivery and fulfilment functionality, warehouse systems integration and licensing will be out of scope. .Any extra or out of scope works will be quantified and estimated to you for your approval. Any of this work that is not paid for in accordance with these terms, can be removed or de-scoped by Balance Internet on written notice to you as required.
5.2 You agree to provide all cooperation and information reasonably requested by Balance Internet necessary for Balance Internet to deliver the Goods and Services. In the event Balance Internet is unable to perform an obligation under this agreement, including delivery of the Goods and Services due to any act or omission by you, the time in which Balance Internet is required to perform that obligation will be extended until the reasons it is unable to perform the obligation are rectified by you.
5.3 Balance Internet will, subject to your compliance with clause 5.4, at its cost and at its option repair or replace any faulty Goods or re-perform faulty Services notified to Balance Internet by you within 30 days from the date of delivery, installation or commercial use or launch of the Goods or Services (Warranty Period).
5.4 You must:
(a) notify Balance Internet of any fault and prove to Balance Internet’s reasonable satisfaction that the fault is due to bad workmanship or faulty materials or faulty Services supplied by or on behalf of Balance Internet; and
(b) if requested by Balance Internet, return the Goods to Balance Internet at your cost.
5.5 Warranty Period items do not include extra project management, training, education, consulting, meetings, rework, upgrades, improvements, new functionality, changes to functionality, new custom code, scope changes, business or promotional rule changes, UX or interface changes, data integrity diagnosis due to data issues in third party systems or client data entry, technical or hosting support or anything not outlined in the scope, estimate or statement of works.
5.6 Any work of Balance Internet that was outlined in the Proposal that cannot be completed due to technical challenges or conflicts, time constraints, performance issues or third party dependencies will be de-scoped. The time and materials associated with this component will either be credited or not billed. If you seek this work to be completed later a new scope, estimate or statement of works for this work will be provided to you for approval.
6.1 You may test whether the Goods and Services supplied to you conform with the Proposal by conducting Acceptance Tests. Balance Internet will provide all reasonable assistance to you in conducting this testing. Balance Internet is entitled to observe and participate in this testing process.
6.2 Within 5 days after the completion of the final delivery of the Goods and Services, you must conduct and complete the Acceptance Tests and must either:
(a) give written notice to Balance Internet that you accept the Goods and Services; or
(b) if the Goods and Services do not substantially comply with the Proposal, give written notice to Balance Internet, identifying the relevant failure, and providing Balance Internet with written reasons that identify the areas of non-compliance with the Proposal.
6.3 If notice is served under clause 6.2(b), Balance Internet will either provide written notice that it accepts your notice and will perform any necessary correction or modification to the Goods and Services so that they pass the Acceptance Tests or Balance Internet will respond in accordance with clause 6.5. Following any correction or modification, Balance Internet and the Customer must perform further Acceptance Tests on the Goods and Services that were the subject of Customer’s written notice, and the steps in clauses 6.1 to 6.4 will re-apply.
6.4 Balance Internet reserves the right to object to a notice served under clause 6.2(b) and may charge you for any further correction or modification work that may be required, in the event that:
(a) in Balance Internet’s reasonable opinion the non-compliance has arisen through your negligence or wilful default; or
(b) if a reason cited by you for non-compliance is, in Balance Internet’s reasonable opinion, either unfounded, resulting from an act or omission of a third party that is not an agent or subcontractor of Balance Internet, or the non compliance cited by you is either unreasonable or trivial in nature.
6.5 You acknowledge and agree that the Goods and Services will be deemed to have been accepted if:
(a) you give Balance Internet written notice under clause 6.2(a), or
(b) no notice is given by you within the time frame specified in under clause 6.2; or
(c) you use the Goods or Services in a live commercial environment or for any non-test purpose.
6.6 In the event the scope of works required to deliver the Goods and Services, including the scope set out in the Proposal, is sought to be varied by you, you acknowledge such a variation if accepted may result in Balance Internet incurring additional costs. This will entitle Balance Internet to provide an estimate for the variation for your approval and or to invoice you for any such additional costs in accordance with Balance Internet’s standard time and material rates.
7 LIMITATION OF LIABILITY, IMPLIED TERMS
7.1 To the extent permitted by law:
(a) Balance Internet excludes all implied warranties and conditions in respect of the Goods or Services supplied under this agreement that may apply, including those that may apply under the Australian Consumer Law and its equivalent supporting state legislation;
(b) any liability Balance Internet has for breach of an implied condition or warranty is limited, as determined by Balance Internet in its sole discretion, to:
(i) replacement of the Goods or supply of equivalent Goods;
(ii) repair of the Goods;
(iii) payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) payment of the cost of having the Goods repaired; or
(v) in the case of Services, the supply of the Services again or payment of the cost of having the Services supplied again.
7.2 Subject to clause 7.1, Balance Internet has no liability for loss or damage which arises directly or indirectly as a result of this agreement or from the supply of any Goods or Services, whether arising in contract, tort, for negligence or otherwise and whether that damage is direct, indirect, consequential or otherwise including lost profits or lost opportunity (including without limitation loss of page rank or page indexing caused by search engine algorithm changes). To the fullest extent permitted by law, Balance Internet makes no warranties or representations to you regarding actual or forecast (i) positioning or the levels or timing of Media Services, (ii) costs per click, (iii) click through rates, (iv) availability and delivery of any impressions, creative, or targets on any of your websites, (v) clicks, (vi) conversions or any other results for any advertisements.
7.3 You agree that you are responsible for the accuracy of all information supplied by you to Balance Internet including: (i) the accuracy of your data (e.g. reach, size of audience, demographics or other purported characteristics of audience), and (ii) the adjacency or placement of advertisements within a program. You further acknowledge that Balance internet and/or its agents have no direct control over the availability of bandwidth over the entirety of the internet and that while it will use reasonable endeavours that in its absolute discretion it deems appropriate to facilitate the continued provision of services at all times, Balance Internet and/or its agents are not responsible or liable for delays caused by overuse of or lack of internet bandwidth.
7.4 You warrant and represent to Balance Internet that you are authorised to supply and or use any content or information that you make available to Balance Internet for use in the provision of Goods and Services (including Customer or third party provided content or software that you may upload, transmit, place, add or otherwise supply or require Balance Internet to use in relation to the Goods and Services), and that any such content does not infringe the Intellectual Property rights of any third party and its use does not contravene any Australian laws. You further warrant that the content or information that you make available to Balance Internet will not contain anything offensive or defamatory to any third party.
7.5 You must indemnify and keep Balance Internet indemnified against all loss or damage suffered by Balance Internet arising out of any breach by you of this agreement (including any breach of clause 7.3 and 7.4) or arising out of your use, operation or possession of the Goods or Services, or the use, operation or possession of the Goods or Services by someone with your authority or permission. You acknowledge that the Goods or Services have been acquired by you for business purposes.
8 INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
8.1 You acknowledge and agree that other than as set out in clause 8.2, no Intellectual Property developed or created under the Proposal is conveyed to or vests in you or any other person other than Balance Internet, and that any Intellectual Property (including future Intellectual Property) arising in respect of Goods or Services supplied or developed under the Proposal or otherwise relating to the Proposal by you or Balance Internet, vests on its creation in Balance Internet.
8.2 Balance Internet grants to you a non-exclusive and personal licence of the Intellectual Property comprised in the Goods and Services provided, for the purpose, scope and term as set out in the Proposal. This licence specifically excludes any right to, supply, reverse engineer, sub-license, or otherwise deal with that Intellectual Property, including the sale, sub-license, supply or other dealing with the Goods and Services or the licence, and does not permit any use other than that expressly stated in this paragraph.
8.3 You must not disclose and must hold as confidential all Confidential Information of Balance Internet disclosed to you in the course of it supplying Goods or Services including any user name or password issued to you. You may only disclose any such Confidential Information only to the extent such disclosure is necessary for you to operate and use the Goods and Services in accordance with the Proposal.
9 SUSPENSION OF OBLIGATIONS
9.1 During any period in which you are in breach of any of these conditions of sale, including due to non-payment of one or more invoices that are due and payable, Balance Internet’s delivery obligations maybe suspended by Balance Internet at its discretion on written notice to you until such time that you are no longer in breach. Balance Internet may terminate this agreement without liability to you by further notice in writing if it is required to suspend its obligations under this clause 9.1 for 30 days or more.
10.1 If you breach this agreement and fail to remedy that breach within 5 business days of receipt of written notice, Balance Internet may at its election without prejudice to its other rights and remedies: (a) terminate this agreement immediately in whole or in part by written notice; (b) seek specific performance of this agreement in whole or in part; (c) seek damages for default; or (d) repossess and resell any Goods delivered to you that you have not paid for in full. In relation to software installed on any Goods, Balance Internet may, at your cost, erase the software or Intellectual Property installed which you have not paid for in full by the date specified in the invoice. You irrevocably permit us to enter your premises to enforce our rights under this clause 10.1.
10.2 Balance Internet may terminate this agreement in whole or in part by notice in writing if you commit an act of insolvency or you die or you includes a person who dies. Balance Internet is not liable for any damages sustained directly or indirectly by you or any other person as a result of Balance Internet exercising any of its rights under this clause 10.
11 GENERAL TERMS AND DICTIONARY
11.1 These conditions, any schedules attached to them and any invoice or quotation referencing these conditions constitute the whole of the agreement between us and supersede any prior representations, statements and agreements in relation to their subject matter. These conditions apply to the exclusion of all documents submitted by you unless and until Balance Internet has expressly agreed to those terms in writing signed by an authorised officer of Balance Internet. These conditions may not be varied except in writing signed by an authorised officer of Balance Internet. The most recent Proposal (if any) takes priority over these terms and conditions only to the extent there is any inconsistency.
11.2 These conditions are governed by the laws in force in the State of Victoria. The parties consent to be subject to the jurisdiction of the courts of the State of Victoria and expressly waive all rights which they may otherwise have under the laws of all other jurisdictions.
11.3 Balance Internet may sub-contract or otherwise arrange for another person to perform any part of this agreement or to discharge any of Balance Internet’s obligations under this agreement without your prior written consent.
11.4 Neither party is liable for any delay or failure to perform its obligations under this agreement (except an obligation to pay money) if such delay or failure is due to any cause outside their reasonable control including without limitation, the acts or omissions of third party suppliers such as web hosting providers, payment gateways, search engines and third party software suppliers and developers. If delay or failure to perform its obligations pursuant to this clause occurs, the performance of that party’s obligations are suspended. If such a suspension exceeds 90 days, either party may immediately terminate the agreement by notice in writing to the other party.
11.5 The United Nations Convention on Contracts for the International Sale of Goods (also known as the Vienna Convention) is expressly excluded.
11.6 You must not, during the term of this agreement or within twelve months after its termination, induce, solicit, engage or employ (or procure the inducement, solicitation, engagement or employment of) any officer, employee or contractor of Balance Internet or any of its related bodies corporate (as that term is defined for the purposes of the Corporations Act 2001) without Balance Internet’s prior written consent.
11.7 The following defined terms apply to all sections of these terms and conditions:
Acceptance Tests means the tests set out in clause 6.1 of Section A.
“Change Requests” means a variation, improvement, change of scope, upgrade or maintenance request for works that were previously out of scope.
Confidential Information means all information of a party other than information which is by its nature is, or which has been designated by that party as being, clearly not confidential in character. Confidential Information does not include information which: is in the public domain other than as a result of a breach of this Agreement; or was developed or known by the other party independently of the other party’s relationship with the party to whom the information is confidential. Confidential Information of Balance Internet includes the following: trade secrets, secret formulae, computer hardware and software programs and designs, artwork, drawings, general designs, financial and accounting information, customer and supplier names, correspondence, negotiations and/or contacts with customers and suppliers, or proposed customers and suppliers, market research, gaming performance data and marketing strategies, research and development plans together with any other information or material that You ought reasonably to be aware is confidential to Balance Internet.
“Express Projects” means any proposal for works under $15,000 plus GST. In general these works have a short turnaround time and are simple non-custom development works.
Goods means all goods to be supplied to you by Balance Internet under this agreement and includes all things set out in the Proposal.
Intellectual Property means the intellectual and industrial property rights, whether registered or not, including copyright, trademarks, patents, designs, circuit layouts, Confidential Information, know-how or inventions, that subsist in the Goods or Services or any subject matter or thing relating to the Goods or Services in Australia or elsewhere.
Interest Rate means10% per annum.
Media services includes Google, Bing, Yahoo, Facebook, Twitter, eBay, LinkedIn, YouTube, Four Square, CC Media, Catalogue Central, Lasoo, Get Price, Shopping.com, Clix Galore and other online advertising channels.
Out of Scope means work that will not be completed or supplied by Balance Internet as part of the Goods and Services supplied under the Proposal.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
PPSR means the Personal Property Securities Register established pursuant to the PPSA.
Proceeds has the same meaning as in the PPSA.
Proposal means the written document provided to you by Balance Internet referencing this agreement and relating to Goods or Services and includes but is not limited to a written scope, statement of works or an estimate.
Purchase Order includes a Proposal signed by you accepting these terms and conditions.
Security Agreement has the same meaning as in the PPSA.
Security Interest has the same meaning as in the PPSA.
Services includes all services to be supplied to you by Balance Internet which are not covered by another written agreement and includes all things set out in the Proposal.
Warranty Period is the 30-day period of time defined in clause 5.3 during which Balance Internet will repair and fix bugs, errors and faults in the work it has delivered. Where a project is marked Express Project in the Proposal, the Warranty Period will be reduced to 14 days.
The following terms apply to all goods and services supplied.
1 BROWSER SUPPORT – SERVICE LIMITATIONS
Where the Proposal includes the provision of maintenance and support for browser software and or operating systems, Balance Internet will conduct site development and testing necessary to achieve substantial compatibility ONLY with the following browsers and operating systems:
Desktop only sites:
IE10+, Chrome and Safari on MacOS
Mobile only sites (for mobile and tablet sites):
iOS native browser (mobile Safari), Android native browser and Windows Phone native browser
Responsive sites (desktop, tablet & mobile):
IE10+, Chrome, Safari on MacOS, iOS native browser (mobile Safari), Android native browse and Windows Phone native browser
2 ONGOING SUPPORT LIMITATIONS
Unless it is expressly referenced and included with in the Proposal, the provision of ongoing support, development, and project management services to you in respect of the good and services supplied under the Proposal after the date of final delivery, launch and acceptance of the Goods or Services to be supplied under the Proposal, will be out of scope. This additional work may be delivered to you under a separate Technical Support Agreement (SLA) to be entered into between you and Balance Internet, or it may be supplied to you by Balance Internet on a time and material basis in accordance with Balance Internet’s then standard hourly rates and pricing.
3 HOSTING SERVICES – VULNERABILITY SCANNING AND PENETRATION TESTING
Where Balance Internet has agreed in the Proposal to provide Hosting Services, Balance Internet encourages and recommends that all customers undertake regular vulnerability scanning and penetration testing of all live, staging and testing websites as defined in the below.
(a) A vulnerability scan is the act of identifying potential vulnerabilities in network devices such as firewalls, routers, switches, servers and applications. The key word is potential, as the majority of vulnerability scanners simply identify potential vulnerabilities, they do not always assess the ability to exploit that vulnerability.
(b) A penetration test takes the result of vulnerability scan and with the use of a number of approaches, techniques and tools, attempts to use the vulnerabilities identified to compromise devices.
Unless expressly stated in the Proposal, the provision of vulnerability scanning and penetration testing of all live, staging and testing websites operated by you (whether supplied or managed by Balance Internet or its agent or not) is out of scope. It is not the responsibility of Balance Internet to undertake any ongoing assessment of the vulnerability of your websites.
Balance Internet is able to recommend appropriately qualified companies that can undertake these independent assessments on a regular basis. Balance Internet may then be engaged on a time and materials basis to undertake any works recommended or required by such companies.
From time to time Balance Internet (or its agents) may upgrade its network infrastructure. This may require you to upgrade your hardware or software if the service are to be continued. Should you choose not to update your hardware or software after being informed of a requirement to do so by Balance Internet, then Balance Internet may terminate the provision of this particular service by giving you 90 days’ notice. Balance Internet in any event will have no responsibility or liability to you for any degradation of or disruption to the services (including Hosting Services) if you do not make the upgrade required by Balance Internet.
Where the provision and or availability of Hosting Services is interrupted for any reason, provided you notify Balance Internet promptly of such interruption and provide all information reasonably requested by Balance Internet to diagnose the cause of such interruption, Balance Internet will then use its reasonable endeavours to restore the provision of these services to their proper operating condition in a timely manner.
Notwithstanding any obligations of Balance Internet set out in this agreement, to the extent permitted by law, Balance Internet excludes all liability to you for any loss (including loss of profits as a result of business interruption) that may arise from the provision of Hosting Services including any use of third party software or hosting services or third party software applications or network devices (including but not limited to third party supplied or operated firewalls, routers, switches and servers) that result in or may contribute to potential vulnerabilities that are or may be exploited or utilised without your authority.