Liquor and Venue Compliance Pty Ltd (LVC) - Compliance Pal Software Agreement

BACKGROUND

  1. LVC is in the business of providing software to venues
  2. The CLIENT wishes to avail itself of the software being provided by LVC.
  3. All IT services that LVC may be contracted to produce or provide to the CLIENT, are limited to and subject to the terms and conditions of this agreement.

Definitions

As used herein and throughout this Agreement:

"Agreement" means this agreement, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments  hereto.

"Content" means all materials, information, photography, writings and other creative content.

“Copyright” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.

“Deliverables” means the services and work product specified in the Proposal to be delivered by LVC to the CLIENT in the form and media specified in the Proposal.

“LVC” means Liquor and Venue Compliance Pty Ltd ACN 617 524 277 , its directors, officers, employees, independent contractors and affiliates.

“GST” means a goods and services or similar tax imposed in Australia.

“GST Act” means a New Tax System (Goods and Services Tax) Act 1999 (Cwlth).

“Hourly Rate” means per hour or as may be amended from time to time as notified in writing to the CLIENT.

“IT” means information technology.

“Key Stages” means the respective time frames for completion of the Project as set out in Schedule No. 3.

“Project” means the scope of works set out in Schedule No. 1.

“Project Costs” means the costs set out in Schedule No. 2.

“Proposal” means the services agreed to be supplied to the CLIENT under this agreement.

“Registrar” means a person who is authorized by au DA to provide services to people who want to register a new domain name, renew their existing domain name, or make changes to their domain name record.

“Services” means all services and the work product to be provided to the CLIENT by LVC as described in the Scope of Works set forth in Schedule No. 1.

“Scope of this Document” means the Scope of Works set out in Schedule No. 1.

“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.

“Open Source Software” means computer software that is available in source code and certain other rights normally reserved for copyright holders that are provided under a software license that permits users to study, change, and improve the software.

“Ongoing Management” means the ongoing work to keep the website functioning and secure. This includes, but is not limited to data management, backups, maintenance, upgrades and software patches.

Operative Provisions

  1. Authorisation

The CLIENT authorises LVC to perform the services outlined in this agreement on the CLIENT’S behalf, which may include, but is not limited to, accessing the CLIENT’S hosting account and disk space, creating databases and applications, and submitting the project to search engines.

  1. Agreement Scope and Period

Services supplied, costs and rates are limited to what is specifically set forth in this agreement.  Any additional services will require an additional agreement.  LVC reserves the right to adjust its services and rates after this period.

  1. Costs and Fees

Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT.  The CLIENT will be advised of all costs, changes and additions before commencement of the additional work.  Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, color printouts, laminating, illustrations, shipping and handling or courier service.  Expenses are itemized on each invoice.  Costs for Services and expenses are subject to GST.

  1. Production Schedules

4.1 Production schedules will be established and adhered to by both the CLIENT and LVC.  Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.

  1. Payment
    • The CLIENT agrees to pay LVC in accordance with the terms specified in each proposal/estimate. Unless otherwise specified, all subsequent balances due are payable upon completion of key stages of the project.
    • If the CLIENT fails to pay any invoice, LVC reserves the right to withdraw the software and associated materials or refuse completion of the services and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all valid claims against the CLIENT are satisfied.  LVC will charge a late payment fee of 5% per month on the outstanding amount.  The CLIENT is responsible for any debt collection fees, which may become due.
  1. Confidentiality

7.1 LVC will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.

7.2 This obligation of confidence will cease to apply in relation to information that LVC is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by LVC of its obligation of confidence under this agreement.

  1. Subcontractors

LVC reserves the right to assign subcontractors or external suppliers.  Any subcontractors or external suppliers will be bound to the terms of this agreement.

  1. Promotion

LVC reserves the right to use the CLIENT’S logo on LVC’s Website.

  1. Copyright
    • The CLIENT is responsible for all trademark, service marks, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials LVC uses for this project. The CLIENT indemnifies LVC against any loss or damage arising directly or indirectly from any unauthorised use of photographs, texts or other intellectual property not under copyright ownership of the CLIENT.
  1. Open Source Software
    • LVC makes extensive use of open source software and components to supply websites and services to the CLIENT. LVC will not charge additional licensing fees on open source software.
    • The CLIENT indemnifies LVC against any loss or damage arising directly or indirectly from any failure of open source software supplied to the CLIENT.
    • All software and components not developed by LVC retain the original license and terms associated with them. LVC cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original author’s terms.
  1. Force Majeure

LVC shall not be deemed in breach of this agreement if LVC is unable to complete the services or any portion thereof by reason of fire, earthquake, labor dispute, act of God, death, illness or incapacity of LVC or any local, state, federal, national or international law, governmental order or regulation or any other event beyond LVC control (collectively, “Force Majeure Event”).  Upon occurrence of any Force Majeure Event, LVC shall give notice to the CLIENT of its inability to perform or of delay in completing the services and shall propose revisions to the Schedule for completion of the Services.

  1. Limitation of Liability

The services and the work product of LVC are sold “as is”.  In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“LVC parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’S maximum remedy, regardless of the cause of action, whether in contract, tort or otherwise, shall be limited to the net cost of the software subscription.   In no event shall LVC be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by LVC even if LVC has been advised of the possibility of such damages.

  1. Termination

13.1 Either party may terminate this agreement by giving 30 days notice to the other of such termination.  In the event that work is postponed or terminated at the request of the CLIENT, LVC shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this agreement.

13.2 If additional payment is due, this shall be payable within fourteen days of the CLIENT’S written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by LVC and LV shall own all rights to the work.  The CLIENT shall assume responsibility for collection of all legal fees, necessitated by default in payment.

  • The CLIENT indemnifies LVC against any loss or damage arising directly or indirectly from any failure of the services provided by the Registrar.
  1. Client Responsibilities

If the CLIENT or an agent of the CLIENT other than LVC attempts to update, edit or alter the software pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at LVC’s standard overtime hourly rate, and is an additional cost above the costs outlined in this agreement.

  1. Errors and Omissions

LVC is not liable for errors or omissions.  The CLIENT indemnifies LVC against any loss or damage arising directly or indirectly from any errors and omissions.

  1. Relationship of Party

LVC, in rendering performance under this agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be an employment, a joint venture, or a partnership.  The CLIENT does not undertake by this agreement, or otherwise, to perform any obligation of LVC, whether by regulation or contract. In no way is LVC to be construed as the agent or to be acting as the agent of the CLIENT in any respect, any other provisions of this agreement notwithstanding.

  1. Notices

Unless expressly stated otherwise in this agreement, all notices and other communications in connection with this agreement must be in writing signed by the sender and marked for the attention of the person to whom the notice is addressed.

All notices must be:-

  • sent by email to the email address set out in this agreement; or
  • In any other way permitted by law.

However if the intended recipient has notified a change of postal address or email address, then the communications must be to that address or email address.

Notices if sent by email are taken to be served either:-

  • when the sender receives an automated message confirming delivery; or
  • Four (4) hours after the time as recorded on the device from when the sender sends the email, unless the sender receives an automated message that the email has not been delivered; whichever happens first.
  1. Agreement Binding on Successors

The provisions of this agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.

  1. Assignability

The CLIENT may not assign this agreement or the rights and obligations thereunder to any third party without the prior express written approval of LVC.  LVC reserves the right to assign subcontractors as needed to the project to ensure on-time completion.

  1. Waiver

No waiver of either party of any default shall be deemed a waiver of prior or subsequent defaults of the same or other provisions of this agreement.

  1. Severability

If any term, clause or provision herein is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this agreement.

  1. Read and Understood

Each party acknowledges that it has read and understood this agreement and agrees to be bound by its terms and conditions.