Master Services Agreement
Norbit Software Pty Ltd (“Norbit”, “we”, “us”) values the opportunity to work with each of its clients, and these terms and conditions, including any other documentation described below (the “Agreement”), govern the provision of our Services (see Section 1) to you. Capitalised terms not defined in this Agreement have the meaning set forth in the Scope of Work. Norbit and Client agree that:
1.1 Scope of Work.
Client may request services from Norbit by providing written agreement to the proposal provided by Norbit to Client, which may be entitled Proposal, Offer, Estimate, Quote, Scope of Work, or Statement of Work (the “Scope of Work”).
1.2 Precedence of Agreement Terms.
Norbit will provide Client with the services described in the Scope of Work (the “Services”) in accordance with the terms and conditions of the Scope of Work and this Agreement. If any term of the Scope of Work conflicts with this Agreement, the Scope of Work will govern, but only to the extent of the conflict.
Fees and Payment
2.1. Amount; Payment.
Client will pay Norbit the fees and other amounts specified in each Scope of Work in accordance with the payment terms included in the Scope of Work. Unless otherwise provided in the applicable Scope of Work, all payments will be made in Australian dollars within 7 days of receipt of the applicable invoice to Norbit’s nominated account, by electronic funds transfer.
Any undisputed amount not paid to Norbit when due will bear interest at the rate of 2% per month or the maximum rate permitted by applicable law, computed and compounded daily from the date due until the date paid. Payment of interest does not cure or excuse any payment default and is without prejudice to any other rights or remedies available to Norbit. In the event of any action by Norbit to collect any amount not paid when due, Client will pay or reimburse Norbit’s reasonable costs of collection, including reasonable attorneys’ fees and court costs. Norbit may accept any cheque or payment in any amount without prejudice to its right to recover the balance of the amount due or pursue any other remedy.
Unless otherwise specified in the applicable Scope of Work, all amounts payable to Norbit under the Agreement do not include any taxes, duties, fees, or other charges assessed or imposed by any government authorities. Client will pay or reimburse Norbit for all such charges upon demand or provide certificates of exemption.
2.4 Travel, accommodation and ancillary expenses.
Norbit will deliver all Services from Norbit premises, including any scheduled workshops or meetings defined in the Scope of Work. Should meetings be mutually agreed away from Norbit’s premises, meetings are expected to occur within the Brisbane metropolitan area or via electronic meeting/online conference, If Norbit personnel are required to travel outside the Brisbane metropolitan area, additional fees will be levied for travel, accommodation, per diem and associated costs as required.
2.5 Project extension fee.
The Scope of Work details the proposed schedule for delivery of the Services. If the project timeframe extends beyond the defined schedule (‘Project Extension’), an additional Project and Account Management Fee of $500 per week will be charged to cover Norbit’s time required to keep project deliverables open and under Norbit’s management.
2.6 Other fees during Project Extension.
In the case of a Project Extension, Norbit may provide a new estimate to deliver any remaining Scope of Work. If the new estimate results in increased fees, such fees will be payable before Norbit recommences delivery of Services.
2.7 Ongoing & Third Party Fees.
Where Norbit’s Services include integration with or provision of products and services supplied by third parties, any initial and ongoing costs of such products or services are excluded from the Fees specified in the Scope Of Work and will be payable by the Client direct to any relevant third party supplier.
Client will reimburse Norbit for all expenses listed in the scope of works or client agreement.
3.2 Additional fees.
In the case additional work is requested by the Client, Norbit will provide an Estimate to the Client for additional fees, which are to be agreed between the parties before further work commences.
Term, Termination and Suspension
This Agreement will commence on the date of this Agreement and will terminate on the date the last Scope of Work then in effect expires or is terminated.
4.2 Other Termination Events.
Either party may terminate this Agreement by giving written notice to the other party:
a) if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of a failure to pay Fees) after receipt of such notice. If Client fails to cure a monetary breach, Client will be responsible for all collections costs including reasonable attorneys’ fees. If the breach (other than where Customer has failed to pay Fees) cannot be cured within thirty (30) days, the breaching party shall be given a reasonable period of time, but not to exceed sixty (60) days after receipt of the notice, to cure the breach, provided that the breaching party acts promptly and diligently to cure such breach.
b) immediately upon giving written notice to the other Party if such other Party becomes unable to pay its debts as they become due, ceases to do business, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements.
4.3 Termination Without Cause.
Should the Client terminate the Agreement or Scope of Work for any reason not specified in 4.2, the Agreement and any active Scope of Work shall be cancelled.
4.4 Effects of Termination.
If the Agreement or any Scope of Work expires or is terminated for any reason noted above,
(a) all liabilities accrued thereunder prior to the effective date of termination or expiration will survive;
(b) Client will pay Norbit all fees and other amounts under the Scope of Work that accrued prior to the effective date of expiration or termination;
(c) Any payments previously remitted to Norbit shall be forfeited (except in the case where Norbit has been advised as required in 4.2(a) it is in breach of the Agreement, and subsequently failed to remedy such breach,; and
(d) Section 5.1, Section 7, Section 8 and Section 12 of this Agreement will survive.
Ownership and Intellectual Property
5.1. Ownership; Reservation of Rights.
The intellectual property and materials used by Norbit to provide the Services, and all improvements to, and all modifications and derivative works of, the foregoing (collectively, the “Norbit Technology”), involve valuable intellectual property and proprietary rights of Norbit and its licensors. No title to or ownership of the Norbit Technology, any associated intellectual property or proprietary rights, or any other rights in or to any other processes, methods, tools, ideas, techniques, or concepts of Norbit or its licensors, whether conceived or invented in connection with the Services or otherwise (“Norbit IP”) is transferred to Client or any third party under the Agreement. Norbit and its licensors reserve all right, title, and interest (including all intellectual property and other proprietary rights) in and to the Services, Norbit Technology, and Norbit IP. No implied rights or licenses are granted by Norbit or any third party in the Agreement.
5.2. Open Source software.
In delivering the Services, Norbit may use open source software platforms including but not limited to applications such as WordPress and Woocommerce. In such cases the Client is required to utilise the same open source software platforms to make ongoing use of the Services. The Client inherits the rights and responsibilities implied by the Open Source licensing terms. Norbit makes no warranty or representations to the suitability of the licensing terms to the Client’s commercial needs, and the Client is responsible for familiarising themselves with any relevant supplier’s licence terms.
Norbit may recommend or implement the use of ‘web-friendly’ fonts as part of the Services. The fonts recommended will be available for Client use at no charge, unless otherwise specified in the Scope Of Work. Should the Client nominate an alternative font, the rights to use the font may involve a licence fee charged by the font provider, and in such cases any fee is excluded from Norbit’s fees and will be paid direct by the Client to the font supplier, under the terms of an agreement to be negotiated between the Client and font supplier.
5.4 Stock Imagery and Other Visual Assets.
The photography used in Services will be supplied by the Client, who warrants to Norbit that the Client has the appropriate rights and licences to publish the imagery in the public domain and online for the purposes of the Services. Norbit may also at its discretion recommend professional suppliers of photography or video to engage with the Client for an additional fee to produce content for the Client for use within the Services.
5.5 Licensing of Intellectual Property.
In circumstances where an IP handover fee is specified in the Scope of Work and paid by the Client., Norbit may offer Intellectual Property handover to the client, in the form of source files (such as .indd, .eps, .psd, editable PDF or similar) to be provided as one of the final deliverables. The IP transferred will be limited to the assets and formats specified in the Scope of Work provided by Norbit to the Client. In this case the provisions of Clause 5.1 are superseded by this Clause 5.5.
5.6 Assignment of Intellectual Property.
Norbit and the Client may execute a written agreement before commencing the Scope of Work regarding transfer of assignable Intellectual Property rights from Norbit to the Client, requiring payment in full of all monies owed by the Client for the Scope of Work and an additional IP assignment fee. In this case the provisions of Clause 5.1 are superseded by this Clause 5.6 and the terms of the signed agreement to assign Intellectual Property rights to the Client.
Warranties and Disclaimer
6.1. Mutual Warranties.
Each party represents and warrants to the other that:
(a) this Agreement and each Scope of Work has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it;
(b) no third-party authorization or approval is required in connection with such party’s execution, delivery, or performance of either this Agreement or any such Scope of Work; and
(c) the execution of each Scope of Work does not violate any applicable laws or the terms of any other agreement to which it is a party or by which it otherwise is bound.
7.1. By Norbit.
Norbit will indemnify, defend and hold harmless Client and Client’s directors, officers, employees, agents, and representatives from and against any and all third party claims, actions, suits, proceedings, damages, losses, liabilities, costs, and expenses (including without limitation reasonable attorneys’ fees and court costs) (each, a “Claim“) that arise out of or in connection with any breach by Norbit of any of its representations or warranties. The indemnification obligations set forth in this Section 7.1 state Norbit’s sole and exclusive liability, and the sole and exclusive remedy of Client, for any breach by Norbit of its warranty in Section 7.2 and for any alleged infringement by Norbit, the Hosted Services, the Norbit Technology, or the Reports.
7.2. By Client.
Client will indemnify, defend, and hold harmless Norbit and Norbit’s directors, officers, employees, agents, and representatives from and against any and all Claims that arise out of or in connection with Client’s or Indirect Users’ use of the Services or breach of the Agreement, except to the extent Norbit has indemnification obligations pursuant to Section 8.1.
In the event of any Claim described in this Section 8, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the Claim; (b) permit the indemnifying party to control the defense and settlement of the Claim; and (c) cooperate with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the Claim. The indemnified party may participate in the defense and settlement of the Claim using attorneys of its choosing and at its own expense. The indemnifying party will not settle a Claim that imposes restrictions or obligations on, or require an admission of guilt from, the indemnified party without the indemnified party’s prior written consent.
Limitations of Liability
8.1. No Consequential Damages.
In no event will either party be liable to the other party, whether in contract, warranty, tort (including negligence, product liability, or strict liability) or otherwise, for any indirect, incidental, consequential, special, punitive, or exemplary damages arising out of or relating to the agreement or such party’s items or services provided under the agreement, including but not limited to damages for loss of revenue or anticipated profits, lost business, lost or corrupted data, or injury to business reputation. Nothing in this section 8.1 will limit a party’s indemnification obligations under section 7, [or liability for its violation or misappropriation of the other party’s proprietary or intellectual property rights.]
8.2. Cap on Liability.
Neither party’s total liability (whether in contract, warranty, tort (including negligence, product liability, or strict liability), or otherwise, arising out of or relating to the agreement or any items or services provided by a party under any scope of work, will exceed the total compensation paid or payable by client to Norbit under the applicable scope of work in the twelve months immediately preceding the assertion of the relevant claim. Nothing in this section 9.2 will limit a party’s indemnification obligations under section 7 or its violation or misappropriation of the other party’s proprietary or intellectual property rights.
8.3. Independent Allocations of Risk.
Each provision of the agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the agreement between the parties. This allocation is reflected in the pricing offered by Norbit to client and is an essential element of the basis of the bargain between the parties.
Delivery of Service
9.1 Time estimates.
Any time specified by Norbit for delivery of the Services is an estimate only and Norbit will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time as was arranged between both parties. In the event that Norbit is unable to supply the Services as agreed solely due to any action or inaction of the Client then Norbit shall be entitled to amend or terminate the project under the Project Extension provisions outlined in Sections 2.5, 2.6 and 4.3.
9.2 Incidental Items.
Delivery of the Services may involve Incidental Items supplied or requested by the Client, including but not limited to fonts, textual content, titles and headings, imagery, alternate text and descriptions, menu items, menu descriptions, text summaries and other content used to populate websites and applications. Norbit will use these Incidental Items as supplied. The Client assures Norbit that the Client holds the appropriate licences or rights to use or publish the Incidental Items in the public domain and online for the purposes of the Services.
Proofing and Presentation
10.1 Proof Reading.
Whilst every care is taken by Norbit to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of any content contained within the Services, including any Incidental Items. Norbit shall be under no liability for any errors not corrected by the Client in the final proof reading. Should the Client’s alterations require additional proofs this shall be invoiced as an additional fee.
10.2 Type and Style.
When style, type or layout is left to Norbit judgement, then the Client makes further alterations to the copy this will be invoiced as an additional fee.
While every effort will be taken by Norbit to match colours, Norbit will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
Where the Proposal includes design work, unless otherwise stated in the Proposal, the Client’s Investment (the purchase price of the Services) includes an allowance for one set of changes to each deliverable. Additional fees for further changes if required shall be charged at the prevailing hourly rate. Any such variation shall be advised by Norbit in writing and confirmed by the Customer in writing before either the work proceeds further or any charges are incurred.
Digital and Website Services
The Client is responsible for all trademarks, service mark, copyright and patent infringement clearances. The Client is also responsible for arranging, prior to publication, any necessary legal clearance of client-supplied materials used for the project. The Client indemnifies Norbit against any loss or damage arising directly or indirectly from any unauthorized use of photographs, text, or other Intellectual Property not under copyright ownership of the Client.
11.2 Multilingual, regional or additional Services.
Unless otherwise specified in the Scope of Work, a single instance of the Services will delivered by Norbit, in English language, and in the case of a website will be launched on a single URL to be nominated by the Client, with access to the server for the relevant domain provided by the Client. If further instances are required on one or more additional URLs, or multilingual versions of the Services are required, the work required will be provided on a separate new Scope of Work at an additional fee.
11.3 Browser and Device Variance.
Websites and web based services included in delivered Services are optimized for XHTML compliant browsers and adjusted where necessary to support the current version (at time of testing) of Internet Explorer (IE). Layout and aesthetic elements may change or degrade in some browsers. Where Services include provision of a website to the Client, websites are tested on: Internet Explorer versions 11+, latest version of Mozilla Firefox (PC and Mac), Apple Safari (Mac) and Google Chrome (PC and Mac). Norbit will test on the current version (at time of testing) of iOS and Android platforms for tablet and mobile compatibility. Website visitors may use different monitors with different settings, and view different results. Colours and image quality of the website including graphics and photography may shift between computers and monitors.
11.4 Testing and Acceptance of Website.
Upon completion of the Scope Of Works, as determined by Norbit, Norbit will notify the Client either verbally or in writing, and provide the Client with an opportunity to test and review the Services prior to final launch (‘Handover’).
Acceptance will be deemed to have occurred when the Client confirms Acceptance in writing, or five (5) calendar days after Norbit provides Handover, whichever is the earlier.
11.6 Bug Fixing.
Norbit provides Bug Fixing for a period of 30 calendar days following Handover. Bug Fixing refers to repairing any performance degradation, faults and errors in the software application, coding, design or other Services specifically provided by Norbit. Other requested changes such as new features, design/usability requests, changing previously finalised Incidental Items are not included in Bug Fixing, and will incur additional charges, Norbit is not liable to fix existing bugs on third party software or in works provided by third parties unless otherwise specifically described in the Scope of Work, including bugs in software platforms and their extensions or plugins (such as Joomla, WordPress, Woocommerce, Magento, Drupal).
11.7 Website Uptime, Data and Security.
Upon Handover of the Services to the Client, the Client is responsible for the hosting, publication and maintenance of the Services and any applicable platforms and applications, and indemnifies Norbit against any loss or damage arising directly or indirectly from resulting website downtime, outages, hacks or security breaches. Additional services such as web hosting management or review, backup and restoration, security management, data protection, uptime reviews, error logging and fault rectification are excluded from the Services and will incur additional fees. Norbit may offer an Ongoing Maintenance Program at additional charge to provide such activity on an ongoing basis if required by the Client.If ongoing management or support is not included in the scope of works Norbit will at its discretion provide an additional proposal and quote to undertake such activity.
11.8 File backup and retention.
Upon Handover of the Services to the Client, Norbit will endeavour to keep a copy and/or backup of relevant files and documentation for a period of twelve (12) months from the date of Handover. Norbit makes no warranty as to the availability or completeness of such records should they be requested. If the Client requests a copy of such information after Handover, and Norbit is able to provide the information requested. Norbit may charge a fee for the retrieval and provision of requested files.
Each party is an independent contractor and not a partner or agent of the other. The Agreement will not create or evidence any partnership or agency between the parties, nor will it impose any partnership or agency obligations or liability upon either party. Neither party is authorized to enter into or incur any agreement, contract, commitment, obligation, or liability in the name of or otherwise on behalf of the other party.
The Client may not assign the Agreement, in whole or in part, to any third party without the other party’s prior written consent, which consent will not be unreasonably withheld; provided, however, that the Client may assign the Agreement without Norbit’s consent to any subsidiary or parent company of such party or to any successor by way of merger, consolidation, sale of assets, or similar transaction, provided that such subsidiary or parent company or successor assumes or otherwise is bound by all of Client’s obligations under the Agreement Subject to the foregoing, the Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
12.3 Promotional Links and Use.
Unless otherwise specified, Norbit shall have the right to include a promotional link in the source code of any Services created crediting Norbit as the developer of the Services, and in the publicly-visible footer section of any website, application or other digital products or Services. In addition, following the launch of the Services, Norbit will be permitted to refer to the Client in its portfolio, and publicise Norbit’s involvement in providing the Services to the Client in the form of online or printed media and web-based articles, online audio or video interviews, case studies or other similar promotional references.
12.4. No Third Party Beneficiaries.
The Agreement is for the benefit of, and will be enforceable by, the parties only. The Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third party beneficiary of the Agreement. under the Agreement, provided that Norbit will remain responsible for its obligations under the Agreement.
Any notice required or permitted under the Agreement will, unless otherwise specified in any Scope of Work, be effective only if in writing and sent by :
a) certified or registered mail, or insured courier, return receipt requested, to the appropriate party at its address set forth in Notices section of this Agreement, and with appropriate postage affixed. Either party may change its address for receipt of notice by written notice to the other party in accordance with the Notices section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or
b) by electronic mail to the other party’s nominated email address in the Notices section in which case notice will be deemed given only upon specific return acknowledgement within 48 hours by electronic mail from the recipient that such notice has been received. Recipient’s acknowledgement must be communicated from the individual recipient. For avoidance of doubt, automatic ‘read receipt’ or auto-responder will not be viewed as valid confirmation of receipt.
12.6. Force Majeure.
Neither party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party).
12.7. Governing Law.
The laws of Queensland govern this Agreement. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Queensland.
The waiver by either party of any breach of any term of the Agreement does not waive any other breach. The failure of a party to insist on strict performance under the Agreement will not be a waiver of its right to demand strict compliance in the future, and will not be construed as a novation of the Agreement.
If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
Client has had the opportunity to review and to propose amendments to this Agreement, and the parties have had an equal opportunity to participate in the drafting of the Agreement. No ambiguity will be construed against a party based upon a claim that it drafted the ambiguous language. The headings at the beginning of several sections in the Agreement are for identification and reference purposes only and must not be used to construe or interpret the Agreement.
12.11. Entire Agreement.
The Agreement, including all Scope of Works and all exhibits, addenda, and schedules hereto and thereto, constitutes the final and complete expression of the agreement between these parties regarding its subject matter. This Agreement and the Scope of Works constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. No employee, agent, or other representative of Norbit has any authority to bind Norbit with respect to any statement, representation, warranty, or other expression not specifically set forth in the Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. The Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Norbit will not be bound by, and specifically objects to, any term or condition that is different from or in addition to the Agreement that is proffered by Client in any receipt, confirmation, correspondence, or otherwise, unless Norbit specifically agrees to such provision in a written document signed by an authorized agent of Norbit.