General Terms & Conditions
Mooball IT General Terms & Conditions
The latest version of this document can always be found at http://docs.google.com/Doc?id=dch56cc6_17dg5h48fb
- 1. Quotations and Variations
- 2. Acceptance of Contracts
- 3. Lead Time to Commence Projects
- 4. Support Response Times
- 5. Time Tracking and Reports
- 6. Hosting Agreements and Software Backup
- 7. Fees
- 8. Payment
- 9. Testing and Acceptance of Product
- 10. Warranty and Liability
- 11. Third party software and components
- 12. Ownership of Software and Materials
- 13. Client Provided Materials
- 14. Non-solicitation
- 15. Confidentiality
- 16. Attribution and Promotion
- 17. Designated Contacts
- 18. Forced Majeure
- 19. Agreement Life
The Web and IT industries are still very young and changing rapidly. Terms and Definitions are still not consistent and the final solutions are often intangible and hard to define. This means that we must work hard to ensure that all parties in a project are working towards the same goals, and projects must be managed with care, consideration of client requirements and constant communication between all parties.
Mooball IT often undertakes projects with clients who are generally very inexperienced in the IT and Web industries and projects of this nature. We strive to ensure that requirements are clearly defined and that the situation doesn't lead to incorrect and unrealistic expectations and eventually to disagreements and disputes.
Mooball IT also undertakes many projects as a subcontractor to a primary contractor providing Web or IT services to a client. This situation can also cause misunderstandings in relation to roles and responsibilities for all areas of a project.
At all times Mooball IT endeavours to be understanding of the client's situation and often extends generous terms in the form of additional tasks and help, flexible payment terms, additional support and advice. However, in order to maintain a profitable business so that we may be here to support you long into the future, we must ensure that there is a general understanding of fair practice and the risks and requirements for an IT project.
The following information is provided in a "plain English" format as a guide to You as The Client of Mooball IT. Unless otherwise noted, these terms and conditions form the basis of any agreement between You (The Client) and Mooball IT.
Please ensure that You are familiar with these terms and conditions and ask for clarification if necessary.
Mooball IT has 3 terms and conditions documents:
- General Terms and Conditions (This document) – defines terms and conditions under which we provide all development, consulting and support services. You agree to these terms when you engage us to provide any services and accept our Service Agreement.
- Support Terms and Conditions – defines terms and conditions under which we may provide ongoing software and technical support. You agree to these terms when you engage us to provide support services and accept our Service Agreement.
- Hosting Terms and Conditions – defines terms and conditions under which we may provide hosting services. You agree to these terms automatically by engaging us to provide hosting services.
Quoting fixed fees on IT projects is often difficult and sometimes impossible.
Mooball IT can only provide fixed fee estimates if The Client can provide a completely detailed unambiguous project specification of all work required (analogous to architectural plans for a building project). This includes mock-ups of all web pages, a full site map of all content, schemas of all databases, a clear narrative of how the system will function and all possible feature requirements including load capacity, accessibility, numbers of visits, colours and branding, hosting and support.
Mooball IT can offer a website "architecture" consultancy service to help The Client develop an adequately detailed specification and recommends this to all clients embarking on projects valued over $10,000. This consultancy will be billed at standard hourly rates.
Where The Client is unable to provide a full project specification, the fees will be provided as an estimation only based on specified estimations of hours and will vary if the work hours vary more than 10% from those estimated.
Mooball IT requires a full project specification for all projects valued over $50,000 and will not commence project development until the full project specification has been finalised and agreed upon, and associated proposals and contracts are accepted.
Fee estimates and quotations are only valid for 60 days and if not accepted in writing may be varied after that time.
Mooball IT will not commence any project of value over $1000 without an executed service agreement stating the scope of work, acceptance of the fees and these terms and conditions, and payment of any deposit outlined in the contract or these terms and conditions.
Mooball IT's current workload varies considerably from month to month. Under normal circumstances it may take more than 30 days from when a service agreement is executed and deposit paid for us to commence the work specified.
At the time of quoting the project, we may specify a commencement time. However, since the time between providing a quote and written acceptance may be many weeks, we are unable to guarantee these times.
This document provides only general guidelines for support and is intended only to cover support during project development. More extensive terms and conditions can be found in the Mooball IT Support Terms and Conditions Document which is intended to cover ongoing support agreements.
Mooball IT does not guarantee that emergency support will be available at all times. Support response is provided on a "best effort" basis. Mooball IT does not manage additional resources unless specifically agreed, so we are unable to provide an instant response to all issues that may arise.
We generally set aside a percentage of our resources at any time to deal with ongoing maintenance and emergency issues and will respond as best we can at any time.
Generally this means that we strive to respond to:
- Urgent and critical issues within 8 working hours
- Less critical tasks within 24 working hours
Mooball IT staff work normal business hours, Monday to Friday, Brisbane time. Support outside these hours must be arranged in advance.
If The Client is likely to be running web and software systems that are critical to the operations of The Client's business then The Client should consider if these responses are adequate and if not, contact us to organise a formal support agreement that meets The Client's needs.
Note: Support charges will depend on whether your project is currently in a warranty period or not – see 9. and 10. below for more details.
Mooball IT uses task and time tracking software to record and report all hours on all projects over $1000. These reports are generally only for internal accounting purposes, but may under some circumstances be provided to Clients upon request.
If The Client require detailed time tracking for a project, then this must be specified prior to quotation and commencement of the project.
Where time sheets are provided, The Client have seven (7) days to review the times and lodge any query or complaint. After 7 days the times will be deemed accepted and subject to billing.
Mooball IT is often asked to provide hosting services in conjunction with website and software development. It should be noted that hosting terms and conditions are separate to these terms and conditions. Hosting fees do not usually include any form of support or maintenance of software, nor do fees associated with the website or software development cover any aspects of hosting.
If The Client requires hosting for software developed by Mooball IT, The Client should note that not all software can run on all hosting facilities. The Client will need to ensure that the hosting facilities The Client choose are capable of running the software we develop. In most cases it is wise to choose the hosting platform first, and make sure that it is nominated in the detailed specifications prior to quotation.
As Mooball IT is also a hosting provider, we are in a unique position to be able to rapidly deploy staging environments for our software projects. However, this is not a free service and can not be continued beyond delivery of a project.
All staging and development environments will decommissioned at the end of the Warranty Period (see 10. below). If you require an ongoing staging environment for future development or your own testing then this must be arranged separately and will generally attract discounted but commercial hosting fees.
In our role as a software development provider we do not automatically provide ongoing backup of your software beyond the end of the warranty period. This may be covered by a separate hosting or support agreement but is not part of our standard terms and conditions.
If you want Mooball IT to provide ongoing backup of your software then this must be specified in a separate support agreement or hosting agreement.
The following is a guide to the fees Mooball IT will offer. The exact fees will always depend on the specific skills required at the time of a project and will vary if additional resources are required at short notice or with specialised skills.
Contracts are generally estimated then calculated on the following rates:
(Australian Clients - these fees are excluding GST)
All time is calculated in 30 minute increments minimum. Visits to your site/meetings are charged including travel time with a minimum of 2 hours.
Work specifically requested to be done outside normal business hours will incur a 50% surcharge on normal rates and will be billed at a minimum of 2h.
Work required at very short notice may also incur additional surcharges depending on availability of staff/contractors.
All travel costs will be charged at cost plus 10%. Mooball IT always endeavours to travel at economy rates and will, wherever possible, confirm all travel expenses over $100 with The Client before booking.
If not otherwise specified payment terms will be as follows:
- Projects up to $1,000 – billed upon completion, payable in 14 days.
- Projects from $1,000 to $10,000 - require a 20% deposit. Final amount will be billed upon completion and payable within 14 days.
- Projects over $10,000 – Specific terms may be negotiated: generally require 15%-20% deposit and all work will be billed after every 80 hours work, payable 14 days from invoice date.
- Casual work will be billed every 40 hours or less if the task is smaller.
Mooball IT does accept credit card payments. Please be aware that credit card payments of more than $500 incur a 2.0% surcharge on the balance above $500.
These payment terms are not conditional upon terms of any other contract The Client may have entered into – in particular, if The Client is the primary contractor on a project and Mooball IT provides services as a subcontractor to The Client, the terms of payment to Mooball IT will not depend on any arrangements The Client may have with its client.
Any transfer of ownership, copyright or right to use software, materials or systems developed by Mooball IT (see 12. below) is conditional on full and final payment of all charges associated with the work. If the agreed payment terms are not met Mooball IT reserves the right to remove, confiscate, suspend any software, hosting services, applications and content associated with the charges.
Unless specified otherwise, Mooball IT will conduct functionality testing against specified requirements on all software before delivery to the client. This work will be a paid part of the contract.
If you do not require such testing then this should be specified before the project is quoted. If you do require such testing then you must provide clearly specified requirements for testing. Note also, that if such testing is not carried out, then we are unable to provide any warranty (see 10. below): in particular, on hourly rated arrangements we must be given the opportunity to carry out a reasonable round of testing and defect fixing as part of our contract before delivery.
If metrics in production such as user visits, numbers of records, amount of data, type of data etc. vary from that specified, then we can not guarantee the performance of the software under the varied conditions.
Of course, if these metrics are not specified at all, then naturally we can take no responsibility for how the software performs under specific conditions. Thus it is extremely important for The Client to provide detailed specifications of all possible scenarios prior to project quotation, and a detailed list of any specific testing that may be required prior to software going live.
Mooball IT can also include Unit Testing and other test methods in development but it is important that any specific testing requirements are specified prior to fee estimations so that they can be factored into fees and estimates.
It is The Client's responsibility to do prompt thorough User Acceptance testing to ensure that the software meets the agreed specifications and to notify Mooball IT within 60 days of the delivery date if a fault is found. Defects reported outside this period will be fixed at regular contracting hourly rates.
Due to the fact that different browsers interpret HTML code differently it is not possible to ensure that a website looks the same in all browsers. Common variations may include:
- different screen resolution
- different fonts and font sizes
- different colours
- different positioning and padding between elements
Mooball IT can only be expected to design websites to work with current browser technology, and can not guarantee that the site will function properly in future web browsers.
As of today (April 2009) unless noted otherwise, website software will be designed to target and function soundly in the following browsers:
- Internet Explorer 6, 7 & 8
- Firefox 2 & 3
- Safari 3
Some features may not work in all browsers and while we will aim to ensure that all critical functions are available in the targeted browsers, we may not be able to provide all features in all browsers.
If you have specific functionality requirements that must be available on specific browsers then this must be specified at the time of scoping the project.
We do not warrant that:
- the services provided under this agreement will be uninterrupted or error free;
- the services will meet The Client's requirements, other than as expressly set out in this agreement
Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
Mooball IT will not be liable to The Client or any other Person for:
- any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
- the content, context or confidentiality of any communications made using the Service;
- loss or damage caused by third party software applications forming part of the Service.
- any costs, claims, loss or damage of any kind resulting from the fraudulent, negligent or otherwise unlawful behaviour of The Client;
- any costs, claims loss or damage arising from any information, data or other material provided to Mooball IT by or on behalf of The Client.
The Client accepts responsibility for all information and material The Client provides as part of the Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular You undertake that You shall not publish or issue any information which is illegal or defamatory. You also acknowledges that we do not vet or approve any information or material available through the Service and that we do not accept any liability. To the full extent permitted by law You access and use such information and material at Your own risk.
The Client indemnifies us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from -
- Your breach of these terms,
- Your use or misuse of the Service and
- the use or misuse of the Service by any person using Your account,
- publication of defamatory, offensive or otherwise unlawful material on any website forming part of Your Service.
Notwithstanding 10.1. Mooball IT provides a 'Warranty Period' for all software we develop, during which time we will provide support services relating specifically to the development and delivery of the software.
Provided we have carried out functional software testing (see 9. above) before delivery, then Mooball IT will endeavour to ensure the software provided retains all its functionality and conforms to the specifications during a warranty period of 60 days from the delivery date.
Note, if not otherwise specified, the delivery date will be defined as the date that the software is first used by the client or in the case of a website placed into public view, which ever is the earliest.
Mooball IT also agrees to provide, at no additional cost to The Client, reasonable technical support during the 60 day warranty period to maintain the software and correct any reported defects. Such maintenance and updates may include correcting any remaining errors or any failure of the software to conform to the specifications, but support and assistance shall not be provided for the development of enhancements or variations to the originally contracted project.
After the 60 day warranty period Mooball IT will provide all support at regular contracting hourly rates.
It should also be noted that no warranty is offered on third party software and components that may make up part of the solution provided. These components may have separate warranties and you should make sure you are familiar with them (see 11. below).
During production and the warranty period Mooball IT requires full and exclusive access to the hosting/production environments and source code. We may provide 'read only' access to source code during development, but all warranties will be void if there is any unapproved 'write' access to the source code or hosting/production environments.
When developing solutions for clients Mooball IT will often consider the use/inclusion of third party software and components. This is most often done to reduce development time and costs. In some cases this will involve third party commercial software for elements such as shopping carts, menus, payment gateways etc. In many cases this will include open-source and free components. In all cases these components come with their own licenses and warranty arrangements.
If you have specific licensing requirements then you must make us aware of them prior to project quotation as this may impact on the choice of these components. For example, some open-source software comes with a GPL license which requires that all software that is linked to it must also carry the GPL license. This may not be acceptable to you and would preclude the use of those components. We must know this prior to quoting and designing a solution as this will impact on any quoted fees.
Naturally we are unable to provide any warranty on third party components. In the case of commercial software a warranty is usually provided with the software. However, in the case of open-source software it is usual that no warranty is provided at all. Thus, faults in open-source components must be fixed at the client's cost regardless of whether the project is in a warranty period or not. If you are not willing to accept this arrangement then you must advise us prior to quoting as this will impact on any quoted fees.
Unless otherwise specified Mooball IT retains ownership of all original artwork, software and HTML code, in any media, including digital files, whether preliminary or final. If The Client requires ownership/copyright of any materials then this must be nominated prior to quotation and will become part of the quotation and final contract.
In most projects, it is necessary for The Client to provide materials such as logos, images, text, site content and data. Where The Client provide such materials to Mooball IT, it is The Client's responsibility to ensure the correctness of the content, that The Client has full rights to the content and that it does not violate any licenses or copyright.
If The Client changes content or images after it has been provided to Mooball IT then additional fees will be charged for work hours involved.
Generally all materials must be provided in digital format. Documents should be provided in plain text or OpenOffice or Microsoft Word format. Images should be provided in .jpg format. Logos should be provided in .png, or .gif format. Data should be provided in .csv or Microsoft Access 2000 format. Any specific colours should be provided in RGB (Pantone is not acceptable as it can not be converted to web colours accurately).
Mooball IT does not provide copy writing or proofing services. In general we do not develop website copy unless specifically scoped in a project. All copy must be provided by the client in a final proofed digital format. Mooball IT will simply copy-paste content directly into the final site designs and will not check content for errors. Any copy corrections will be charged to the client.
In the case of a Content Management System (CMS) based website, it is generally accepted that the client is responsible for entering and publishing all site content. Mooball will hand over site editing tools and provide documentation (and training if scoped). It is the clients responsibility to become familiar with the site editing tools and enter all necessary content prior to the site launch.
The delivery date of a completed CMS based website is not dependant on completion or testing of client copy. Any delay in the creation of content by the client will not delay the final delivery and associated invoicing deadlines.
Neither party may, without the prior express written consent of the other party, employ or engage the services of the other party’s representatives (including any individual or company or independent contractor) during their participation in the engagement or during the twelve (12) months thereafter.
Each party must ensure that its representatives do not make public or disclose information about this agreement, the other party's confidential information or the other party's operations.
Mooball IT staff are all subject to confidentiality agreements as a requirement of employment. However if The Client have specific confidentiality requirements then it is important that these are made clear before the project is commenced.
Mooball IT reserves the right to place our logo and a link to our website on any website or software we develop. We may also use The Clients name and website URL and images of the website/software in any promotional materials about Mooball IT
In order to minimise confusion and reduce the possibility of misunderstandings Mooball IT and The Client must nominate designated persons who will send and accept all deliverables and receive and make all communications between Mooball IT and The Client. Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the designated persons listed above. Each party has the right to change its designated person upon 7 day(s) notice to the other.
During the course of any project, Mooball IT accepts requests for additional work only from the designated contacts.
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).
The terms and conditions of a Service Agreement with Mooball IT will remain in place until at least 1 year after the delivery date or end date, which ever is the latest.
Mooball IT General Terms & Conditions - 20 May 2009 - © Mooball IT - Page 1 of 1