DRAGONVR STANDARD CLIENT AGREEMENT - TERMS AND CONDITIONS
These Terms and Conditions (Agreement) apply to all Projects and Services that DragonVR provides to or which are accepted by any person (Client). The Client is deemed to have read, understood and accepted these Terms and Conditions if at any time the Client requests or accepts any Project or Services or pays any deposit or any other monies in relation to a Project or Service.
1. Definitions and Interpretation
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:
Agreement means the legally binding contract arising between the parties under this document.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.
Commencement Date means the date that the Client accepts a Project Scope or pays any deposit or any other monies in relation to a Project or Service.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the: personnel, policies, practices, clientele or business strategies of the parties; Intellectual Property Rights of either party; the terms of the Agreement; but does not include information: already rightfully known to the receiving party at the time of disclosure by the other party; or in the public domain (including information made publicly available via a mechanism in the Services by DragonVR) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Consumer Law means the Competition and Consumer Act 2010 (Cth) or similar applicable legislation.
Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
Data means any data, content, code, video, images or other materials of any type which the Client uploads, submits or otherwise transmits to or through the Hosted Services.
Fee means any amount payable by the Client to DragonVR as stipulated in the Project Scope or Hosted Services Order.
Hosted Services means the hosting services provided by DragonVR.
Hosted Services Order means the documentation issued by DragonVR to the Client which sets out the fees, term, storage levels and any additional information about the Hosted Services.
Insolvency Event means in respect of a party: the appointment of an administrator, a receiver or receiver and manager in respect of that party; an application to a court or an order for the winding up of the party; or the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, know-how, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor,
sub-contractor or Related Entity of that person or of a Related Body Corporate of that person.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Pro Partner Agreement means the agreement between DragonVR and a DragonVR Pro Partner.
Privacy Law means the Privacy Act 1988 (Cth) and any code registered under the Privacy Act or Australian Privacy Principles.
Project means the provision of services associated with delivering the outcomes set out in the Project Scope.
Project Scope means the material and documentation as prescribed by DragonVR from time to time which sets out the deliverables, features, deadlines, quotes and preliminary designs of the Project.
Services means any services provided or procured by DragonVR in relation to the Hosted Services, Project, and/or the Software or otherwise performed in connection with any request by the Client.
Software means 3D visualisation and imaging software known as “DragonVR”
Standard Reseller Agreement means the agreement between DragonVR and a Re-seller of the DragonVR services.
Term means the period calculated in accordance with clause 2.
Website means www.dragonvr.com.au
In this Agreement:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
(c) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(f) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(g) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement;
(h) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(i) references to payments to any party to this Agreement include payments to another person upon the direction of such party;
(j) all payments to be made under this Agreement will be made by unendorsed bank cheque or other immediately available funds;
(k) words surrounded by inverted commas are to be interpreted in the way an expert in the relevant field would interpret them;
(l) the word “includes” in any form is not a word of limitation; and
(m) a reference to “$” or “dollar” is to Australian currency.
2. Agreement Length
This Agreement commences on the Commencement Date and will continue until terminated in accordance with clause 19 of this Agreement.
2.2 Retrospective Application
If DragonVR began providing the Services before a deposit payment was received, the Agreement will apply retrospectively from the date on which DragonVR first provided the Services.
3.1 New Projects
Where a Project is also subject to a Standard Reseller Agreement or Pro Partner Agreement, the obligations of the Client in this clause 3 may also be completed by the Reseller or Pro Partner (as the case may be).
(a) The Client will submit the Project Scope to DragonVR for each proposed Project.
(b) DragonVR may in its absolute discretion either issue a quote to the Client in regard to the Project Scope or reject the Project Scope.
(c) A quote or indication of a price issued by DragonVR is an invitation to treat, not a contractual offer.
(d) Any quote issued by DragonVR is valid for 30 days from the date of issue. If the Client does not accept a quote within 30 days, the quote will be deemed rejected by the Client.
(e) DragonVR reserves the right to cancel or modify a quote at any time before the Client has accepted a quote.
(f) Accepted quotes will be considered a Project following acceptance by the Client in writing or pays any deposit or any other monies in relation to Project.
(g) A Project may only be cancelled in accordance with the terms and conditions of this Agreement or as agreed in writing between the parties.
3.2 Client’s Obligations
(a) The Client must:
(i) provide all information required by DragonVR for the purpose of delivering the Project; and
(ii) cooperate fully with DragonVR to prevent delays in delivering the Project.
(b) The Client warrants that:
(i) all of the information that it provides to DragonVR0 is accurate and complete in all respects; and
(ii) it will inform DragonVR whenever any such information changes.
3.3 Project Delays
(a) DragonVR will keep the Client informed of any delays and the timeline to remedy these delays.
(b) DragonVR will not be responsible for any delay in delivering the Project if such delay is the result of an act, omission or neglect by the Client.
(c) The Client acknowledges and agrees that in the event of a delay, regardless if caused by DragonVR or the Client:
(i) any time frames, milestones and/or deadlines will be extended by the number of days in which the cause of the delay was current;
(ii) the delay will not be considered a breach of this Agreement and the Client will not be entitled to a refund of any money paid or waiver of any obligation concerning payments.
(iii) if a delay continues for more than two months, DragonVR may cease work on the Project.
3.4 Delivery of the Project
(a) DragonVR will provide an electronic link to the Client to view the Project.
(b) DragonVR reserve the right to publish the Project within one month of providing an electronic link to the Project regardless if the Client requests further changes or modifications in accordance with clause 3.5(a).
3.5 Revisions to the Project
(a) The Client may request changes or modifications to the Project during the Term.
(b) The changes or modifications contemplated by clause 3.5(a) are limited to design adjustments and implementation of feedback of minor nature and magnitude and must not exceed a cumulative total of 10% of the total Fee. Work performed by DragonVR pursuant to this clause 3.5 will be calculated at a rate of $100 + GST per hour.
3.6 Submitted Material
(a) The Client must not submit or cause to be submitted to DragonVR any of the following:
(i) any material that the Client does not own or have the right to use;
(ii) any confidential information of any third party without the express consent of the third party;
(iii) any material that is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or
(iv) any material that infringes the Intellectual Property Right of a third party;
(b) DragonVR reserves the right to cease work on the Project, if its absolute discretion believes that the Client is in breach of any of the conditions of this clause 3.6.
(c) The Client irrevocably grants a non-exclusive, royalty free license to DragonVR to use in any material supplied by the Client in connection with the Project.
(d) Unless clause 3.10 applies, clause 3.6(c) survives termination of this Agreement.
3.7 Hosting the Project
(a) The Client acknowledges and agrees that DragonVR will have the exclusive right to host the Project on a server of its choosing.
(b) DragonVR reserves the right to change the server at any time in its sole discretion.
3.8 Viewing the Project
The Client will have the ability to view the Project:
(a) directly on the DragonVR Website;
(b) in a file downloaded through an electronic link provided by DragonVR; or
(c) another method as made available by DragonVR from time to time.
3.9 Publishing the Project
The Client agrees and acknowledges that DragonVR may publish, use or share the Project, including all digital models and assets associated with it:
(a) to be used for DragonVR demonstration content and/or for other projects for other clients; or
(b) to be used on its Website; or
(c) to be used on a third party website; or
(d) to be used via an embedded link on a third party website, making the Project available for viewing by the general public.
3.10 Removal of the Project
(a) Following the completion of the Project, the Client may request DragonVR in writing to remove the Project from the Software.
(b) DragonVR will remove the Project from the Software within 30 days after receiving a request in accordance with clause 3.10 (a).
(c) The Client acknowledges and agrees that if the Project is removed from the Software, the Project will no longer be recoverable and the Client must export any data it requires prior to issuing a request pursuant to clause 3.10(a).
3.11 Project not for Reselling
(a) The Client must not:
(i) engage DragonVR with the purpose of reselling the Project to a third party.
(ii)without the prior written consent of DragonVR sell or otherwise transfer the Project whether for monetary compensation or not to a third party.
(b) If the Client wishes to resell Projects, the Client must enter into the DragonVR Partner Agreement.
4. Hosted Services
4.1 Provision of Hosted Services
DragonVR agrees to provide the Hosted Services in accordance with the Hosted Services Order.
DragonVR grants the Client a non-transferable, non-exclusive and revocable licence to access and use the Hosted Services subject to the terms of this Agreement.
4.3 Storage Limits
(a) There may be storage limits associated with the Hosted Services. These limits are described in the Hosted Services Order.
(b) DragonVR reserves the right to charge for additional storage or excessive usage fees at the rates specified by DragonVR from time to time.
(c) DragonVR, in its absolute discretion may add new or modify existing storage limits for the Hosted Services at any time.
5.1 Software Licence
DragonVR grants to the Client a non-transferrable, non-exclusive and revocable licence to use the Software, subject to the terms of the Agreement.
6. The Services
6.1 Provision of Services
(a) DragonVR agrees to perform the Services in accordance with this Agreement.
(b) DragonVR will perform the Services to that standard of care and skill to be expected of a person who regularly acts in the capacity in which DragonVR is engaged and who possesses the knowledge, skill and experience of a person qualified to act in that capacity.
(c) The Client must provide all information required by DragonVR for the purpose of providing the Services.
6.2 Delivery of Support and Maintenance
DragonVR will provide support and maintenance services in respect of the Services via email and telephone only, during the hours 9.30am to 5.30pm Australian Eastern Standard time on Business Days.
6.3 Services not Available Locally
The Client agrees and accepts that the Hosted Services and Software is hosted by DragonVR (or a third party engaged by DragonVR) and will only be accessible using the Internet (or other connection to DragonVR’s or a third-party’s servers), and will not be available ‘locally’ from the Client’s own servers or computer systems, unless requested by the Client and agreed in writing by DragonVR (at DragonVR’s absolute discretion).
6.4 Parts of DragonVR Controlled by Third Parties
The Client agrees and accepts that DragonVR is or may be from time to time operated form servers owned and controlled by a third party. As such, the Client acknowledges that certain functions are out of DragonVR’s control, including databases and application infrastructure, and DragonVR is not responsible for any event or action caused by any third party contemplated in this clause 6.4
6.5 DragonVR in Beta
The Client acknowledges and agrees that parts of the Hosted Services and/or Software may be released by DragonVR in a beta testing version, and that in such case, the Client should use the Hosted Services and/or Software with that standard of stability in mind.
6.6 Maintenance, Updates, Changes, Inaccessibility and Errors
(a) DragonVR reserve the right, with at least 5 Business Day’s notice, to make some or all of the Hosted Services and/or Software inaccessible from time to time as is required for updates, maintenance and/or upgrades. Notification may be done by email or by posting a notice on the Website.
(b) From time to time, without notice, access to all or part of the Hosted Services and/or Software may be disrupted or limited. During such an interruption, DragonVR will use its reasonable endeavours to restore access to the Hosted Services and/or Software as soon as practicable.
(c) DragonVR reserve the right to correct any errors on the Hosted Services and/or Software, upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Hosted Services and/or Software at DragonVR sole and absolute discretion.
(d) The Client acknowledges and agrees that DragonVR will not be liable for any loss or damage that the Client or any other person incur by any changes made to the Hosted Services and/or Software and/or the Client not being able to access the Software or any part of it.
6.7 Third Party Content
The inclusion of any third party link does not imply any endorsement or recommendation of a linked website by DragonVR. DragonVR will not be responsible for any third party advertising content displayed on the Software. Any link on the Software to a third party website, or decision to accept any third party offer, is entirely at the Client’s own risk.
6.8 Additional Work
(a) If the Client requires support and maintenance that is deemed in DragonVR’s absolute discretion to be out of scope of the Services, DragonVR may charge the Client an additional fee as determined by DragonVR.
(b) If DragonVR reasonably determines that the requirement for any work outside the scope of the Service is caused by the fault or error of DragonVR, the Client shall not pay for that additional work.
7.1 Invoices and Payment
(a) DragonVR will invoice the Client for the Fee and the Client must pay the invoice by the due date stated on the invoice.
(b) If the client or DragonVR decides to cancel the project at any time after a deposit payment has been received, DragonVR will invoice only for work that has been completed to date including any administration and processing fees.
(c) DragonVR reserves the right to withhold fees for administration and processing in cases when a refund is granted to cover all costs incurred by DragonVR for works completed.
7.2 GST Wording
Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this Agreement.