Terms and Conditions - THIS AGREEMENT is between Software Developers Inc (SDI), a Corporation having its office at
12, Bunyip Walk,Caroline Springs,VIC - 3028, AU and the individual or company (Client) accepting these terms and conditions and signing or submitting this Agreement online or in written form ("Client" shall unless conflicting with the context or meaning thereof, be deemed to include its assignors, successors etc).
The policies, terms and conditions below limit SDI's liability and obligations to you. We urge you to carefully read the following terms and conditions.
1. By accepting or submitting this Agreement electronically or in writing, you, the Client, agree to be bound by the following terms and conditions. No variation of these conditions will be binding unless made in writing and signed by a director of SDI. If you do not accept this agreement in its entirety, you may not access or use our services. If you agree to these terms and conditions on behalf of a business, you represent and warrant that you have the authority to bind that business to this agreement and your agreement to these terms will be treated as the agreement of the business. In that event, "you" and "your" will refer and apply to that business.
2. SDI provides Sales, Marketing, Design and Programming services for Apps, Websites and Software, amongst other services. The Client acknowledges that for providing any or all of these services, SDI will need to obtain information and instructions from the Client with regards to the contracted service(s). During the course of receiving these services, the Client shall make available to SDI, representative(s) of sufficient seniority to make decisions and give instructions on behalf of the Client to SDI. Any instructions given by such representative(s) may be relied upon fully by SDI. In the event that the Client fails to supply such information or instructions within 30 business days of an email or written request from SDI and SDI is thereby unable to perform its obligations under the contract, SDI shall be entitled forthwith to terminate this Contract. In the event of such termination, the Client shall be liable to pay for all work undertaken by SDI on behalf of the Client prior to termination at SDI's standard hourly rates (currently US$30/hour) or as per the agreed rate per hour between SDI and the client, together with all costs and expenses reasonably incurred by SDI as a result of such early termination.
3. The specifications and/or proposal provided with this agreement constitutes the entire scope of work. Any specification and/or details not mentioned in this agreement or mentioned in SDI’s document or email prior to this agreement are not valid and are not included in this contract. Client understands that SDI’s services may include a specific number of tasks, pages, features and/or functionality etc. If the Client desires additional features, functionality, pages or tasks and/or provides any variation to the agreed specifications, then these will be considered as a change request or additional enhancements.. SDI may perform these change requests or additional enhancements at its discretion with or without additional charges at SDI's standard hourly rates ($30/hour), to reflect the cost and expenses of additional work incurred by SDI. SDI is not obligated to complete Client requests or changes outside of the scope of work on the original agreement. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a Client requests for cancellation of an enhancement or additional services, the original sale is not cancelled. All information provided to SDI by client may be shared by SDI with law enforcement authorities if SDI is requested to provide such information by the law enforcement authorities and cooperate with them in any resulting investigation or prosecution.
4. If the Client requires SDI to provide design services and such design is left partly or wholly to the discretion of SDI, then SDI will provide design services to the best of its abilities. Client should provide clear written instructions on design expectations if any. SDI will provide up to 3 design iterations to meet a client’s expectations. SDI cannot be liable to the Client if such design or other aspect does not meet with the Client's approval within these 3 iterations and design services will be deemed to be rendered. Additional iterations may be provided by SDI with or without additional costs at SDI’s discretion.
5. Client understands, agrees and acknowledges that SDI does not guarantee a time frame for the completion of ANY service. This is in part because it is difficult to complete a service without design, programming or testing approvals and active participation from the Client. In addition, if the Client continues to submit additional content throughout the service process, or requests additional modifications to the design or programming, the completion time frame may increase. Other factors that may influence the completion date of a service may be due to the complexity of Client's project(s), availability of SDI personnel, accounting status of Client's billing account, etc. If Client does not respond to SDI communications within 30 business days and, as a result, SDI is not able to start or complete the service, Client is still responsible for all fees incurred including, but not limited to, design purchase price, set-up fees, personnel costs, enhancements purchased and monthly hosting charges that begin accruing from date of sale.
6. Any 3rd party costs that are agreed to in advance by Client that may be implemented such as paid subscriptions to various websites or PPC ads for Google/Yahoo, stock images, or any other paid advertising, traveling and purchase costs will be paid dollar for dollar either directly by Client or Client will reimburse SDI for the exact amount after SDI has paid for these services.
7. All services and/or products provided by SDI including Sales, Marketing, Social Media Marketing, Design, Programming, Server hosting, Domain name registration, SEO, database design and architecture, App, website or software programs created or maintained by SDI are the property of SDI until Client has paid all fees as agreed between the client and SDI.
8. SDI's sales, design and development centers are in the U.S, India and Australia. If a client requires SDI to provide its services at a site of client’s choosing, then SDI may provide it at its discretion. In such an event, the Client shall bear the traveling, boarding and lodging expenses for SDI personnel as per SDI's policies.
9. SDI agrees to implement the agreed upon sales & marketing activities on behalf of the client. Client will provide information and ad content when/if required and will co-operate by lending their experience and knowledge for this process. SDI will be responsible for the complete execution and implementation of the activities/strategies detailed in this agreement. SDI will inform the client regularly about its activities but cannot wait for a client’s approval as activities are planned, modified and implemented continuously to get best results. Client should monitor the activities and let SDI know if any activity needs to change or be stopped. The Client is solely responsible for the quality, guarantee and performance of its product, services, and/or its business. If SDI receives complaints from customers about the quality of a client’s product or service, the Client accepts full responsibility in resolving the customer’s complaint. SDI is purely providing marketing and sales services without taking any liability for the client’s product and/or services and client agrees to indemnify SDI in case of any claim by a customer or 3rd party. Client understands and accepts that SDI’s sales, marketing and/or SEO/SMM services are provided without any guarantees for success or performance unless explicitly agreed. It is the client's obligation to pay fees due to SDI as set out in the agreed contract. Client must pay all due commissions and fees as per the agreed schedule and/or achieved goals.
10. SDI follows design and programming standards as per an internal document known as "SDI Design and Programming standards". A copy of this document can be provided to the client on request. If client requires any specific standards of design or programming which are different from SDI’s document, then the client must provide those standards in a detailed document before the start of the project and SDI may then decide to accept or reject the project. If client needs a change or variation to SDI’s Design and Programming standards, then this request must be made before the start of SDI’s services under this agreement.
11. If Client requests changes to a 3rd party pre-packaged App, Software, website, database, pre-built database module, or e-commerce store module, then there is no guarantee that changes made by SDI will work. Client agrees that all time spent by SDI on these services are billable and agrees to pay for all fees incurred by SDI.
12. SDI may provide verbal or written instructions on how to use any of SDI’s delivered services/products. After delivery, day to day management, maintenance, data entry and testing is the sole responsibility of the Client. SDI may provide the above services at additional charges if requested by the client.
13. While SDI does not guarantee a time frame for the completion of its services, it may offer an optional expedited service to Client for a fee. Expedited service is not available for all accounts and all requests for expedited service must be approved by SDI at its sole discretion. Client understands and agrees that Client's use of expedited service does not guarantee that Client's project will be completed more quickly than they would be without the use of the expedited service. The expedited service fee only ensures that SDI will make reasonable efforts to more quickly assign personnel to the account in an effort to facilitate faster progress than would be the case under the ordinary service process. The successful use of expedited service is contingent upon Client's timely acceptance of the Terms of Service, payment of any and all fees due, submission of content, acceptance of any project specification documents prepared by SDI and timely cooperation with SDI in any solicitation for information related to SDI’s services. If expedited service is offered to Client by SDI, Client may be presented with an estimated date of completion. Client understands and agrees that such estimated dates of completion are estimates only and may apply only to one particular element of the website and/or Software and/or app, i.e. database, e-commerce, design, and not necessarily to multiple elements of the website and/or Software and/or app or to the website and/or Software and/or app collectively. Under no circumstances will SDI guarantee the respective portion or portions of the website and/or Software and/or app subject to the estimated date of completion to be completed sooner than the estimated date of completion. Should circumstances arise that make it impossible to complete the portion or portions of the website and/or Software and/or app that are subject to the estimated date of completion by the estimated date of completion, including but not limited to Client failure to provide SDI with requested information in a timely manner, SDI reserves the right to change the estimated date of completion accordingly or to cancel the expedited services and refund a portion of the expedited service fee to Client. In no case shall the refunded portion of the expedited service fee be greater than fifty percent (50%) of the expedited service fee. Regardless of whether work is completed by the estimated date of completion, Client remains liable to SDI for any and all other charges related to the website and/or Software and/or app's development.
14. SDI may provide Dedicated staff (Which may include Dedicated programmer/designer/Sales/SEO/SMM/Testing personnel) or Hourly Rate contracts as part of its services. In Dedicated Staff contracts, the contracts will be fixed for the specific period as discussed and decided between SDI and the Client. In this service, the client is paying for the time and hours worked and not for any specific deliverable(s) or results. The assigned personnel will do all tasks as physically possible during the working hours within the contract period. The delivered services do not carry any warranty or guarantee and will be done to SDI's best efforts. SDI's responsibility on the deliverables will be till the end of the contract period only and no tasks will be taken up on expiration of the contract period. Once the contract expires, SDI will hand over all work files to the client if requested and from then on SDI will not be responsible for the performance, integrity, quality or security of the codes delivered. Client agrees that there is no guarantee of the perceived or real quality of work for Dedicated Staff or Hourly-Rate Contracts. Clients may dispute hours during the 7 days following the close of a weekly or monthly contract period. It is the Client's responsibility to review the work submissions of every contract on a weekly basis and file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Client and can no longer be disputed. Disputes can only address the hours billed, not the quality of the work performed or deliverables.
15. All websites, apps or software apps produced and delivered by SDI may contain bugs or problems in functionality or delivered features, unknown to SDI. This does not include problems arising or caused by outside sources and/or third party apps. If SDI is notified by the client in writing about bugs in the website, app or software for a period of up to 180 days from the date of delivery or date of services rendered, then SDI will make all efforts to resolve the bugs and a solution will be sent to the client. This is known as a Bug-resolution guarantee. The bug resolution services will be provided with reasonable skill and care in accordance with usual industry practice and in a timely, workmanlike and effective manner.
16. For websites, SDI provides testing on 2 internet browsers of SDI's choice on any 1 platform (Windows or Mac) for all website design and development orders that it undertakes. If the client wants the website to be tested on more than 2 browsers or multiple platforms then SDI may apply an additional fee at its sole discretion.
17. For Apps, SDI will test the app on any 2 popular devices (iOS and/or Android as applicable). If client wants the App to be tested on more than 2 devices or on multiple levels then SDI may apply an additional fee at its sole discretion.
18. All apps are developed as Native apps or Framework apps. Native apps will be created via the SDKs provided by the principal company—Apple Inc for iPhone/iPad apps, Google Inc for Android apps, or as per the 3rd party SDK that is employed for the service. SDI's responsibility is to provide a working app under the latest version of the SDK at the time of delivery. If client wishes to make the app compatible with future versions, SDI may charge an additional fee as and when client requests compatibility with the latest version of the SDK. For framework apps, SDI may use ready-made code, ready-made CMS and/or ready-made Frameworks in addition to custom created code to create web services, apps or software. These ready-made codes may be used to expedite project development and will be used at SDI's discretion as deemed feasible for the project.
19. A client can request SDI to build a website, app or software app from 100% custom code created from scratch and SDI will decide and let the client know if its feasible and if any additional charges are applicable to create the project from 100% custom code. This request has to be made before the start of any contract between SDI and the Client.
20. If domain name registration is purchased through SDI then Client agrees to pay SDI for domain names purchased and/or renewed by SDI on Client's behalf unless otherwise agreed in writing. Domain names purchased by SDI on Client's behalf are the property of SDI until Client has paid all fees. If a client requests transfer of a domain name to another registrar or server, then SDI may do so on receipt of full payment for all services billed. Upon transfer of domain to Client or another service provider, Client agrees that SDI has met in full its obligation to Client, and SDI is released of all past and future obligations to the Client. Domain names are purchased through a third party service on Client's behalf. SDI cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase SDI may assist the Client in selecting and purchasing an alternate domain name. If Client ceases to pay domain renewal, hosting or other fees due to SDI then due ownership of any domain names purchased by SDI on Client's behalf or controlled by SDI are transferred to SDI. Then SDI may allow the domain name(s) to expire, may renew the domain name and remain the owner, or SDI may sell the domain name at its sole discretion and for SDI's sole benefit.
21. SDI provides contracts and services for Sales and Marketing of a Client's products or services. SDI also provides contracts for design, programming and hosting. Each of these are separate contracts and not dependent on each other. Ultimately the success or failure of the Client's website and/or software and/or app and/or product is the responsibility of the Client.
22. This agreement shall not be cancelled by the Client, except with the written consent of SDI. Such cancellation can only be on the terms that the Client shall indemnify SDI in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by SDI as a result of cancellation.
23. After the start of SDI’s contract for its services, if the client discontinues communication with SDI for any reason without informing SDI and then requests for restarting the project after an absence in communication with SDI of at-least 30 days, then SDI may apply resource re-allocation charges before re-starting the project. Resource re-allocation charges are calculated at a minimum of 20% of the original contract value and SDI will expect this payment upfront before restarting the project.
24. SDI will provide services professionally and honestly following standard business practices and ethics. If a client employs rude, improper or abusive language or behavior in communication with SDI or its employees, then SDI reserves the right to refuse to provide its services at its sole discretion anytime. In such an event, SDI will bill for all services provided to the client till such an event and reserve the right to terminate the contract without any additional liabilities from SDI to the client for the contracted service(s).
25. If the Client requests cancellation of a contract before the work is completed, a cancellation fee of up to 80% of the Project value may be retained by SDI. Client agrees that all fees incurred due to work rendered by SDI's staff and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for cancellation/termination of services the website and/or Software and/or app will be removed. A backup copy of the website and/or software and/or app is not maintained by SDI. Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the cancellation effective date, and at a minimum for hosting fees for one year if the client has contracted SDI for hosting services. Transferring a domain name to another provider or non-use of Client's hosting account does not constitute termination of the account. Client must notify SDI in writing or via email to terminate the account services and avoid further hosting charges. It is Client's responsibility to secure confirmation from SDI that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of website and/or software and/or app hosting services or additional services should be sent to the following address:
Attn: Software Developers Inc, 12, Bunyip Walk,Caroline Springs,VIC - 3028, AU
Requests may also be emailed to email@example.com.
26. The effective date of cancellation is to be 30 days from the date of SDI's receipt of written notice to cancel. Any monthly fees scheduled to bill after receipt of written notice to cancel but before the effective date of cancellation are valid and Client agrees to pay. If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes SDI to collect any outstanding fees due. Client understands any pending billing previously agreed to will not be cancelled.
27. Refunds of the fees paid for SDI’s services may be issued on accounts cancelled within 90 days of the initial sale and prior to the completion of the service according to the following schedule:
A) A minimum of a 50% cancellation fee will be retained by SDI on cancelled accounts even if no work has been started and no content yet submitted by the Client.
B) A minimum of a 75% cancellation fee will be retained by SDI on cancelled accounts if work has been presented to the Client; or SDI has made multiple attempts to work with the Client, and Client has not responded to those attempts.
C) No Refund will be issued after services have been rendered.
D) NO REFUND will be issued by SDI if Client cancels after 90 days from the date of initial sale or the submission date of this Agreement.
The cancellation fee is charged to compensate SDI for up-front expenses and services rendered, including but not limited to, costs incurred for the purchase of domain name(s) for developing the website, securing server space, creating the temporary website and/or software and/or app or space saver, employee expenses, employee time, marketing, and overhead costs. Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay.
28. By accepting a refund in full or with a cancellation fee, Client agrees that the matter is settled in full and releases SDI, its officers, owners, members, agents and employees of any and all contractual obligations and waives all claims of any nature, including legal action, against SDI's its officers, owners, members, agents and employees. In its discretion, SDI may set off amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
29. Upon Client approval for any of SDI’s services/products to go live, Client explicitly agrees that the contracted services have been rendered and functionality of the service has been tested and approved by Client. SDI has no liabilities or responsibilities of any kind towards the client after this except for the bug resolution guarantee for 180 days from the date of delivery.
30. SDI shall undertake standard virus and malware checks of any asset that is being created and provided to a client which may include a website, App, Software and/or Hosting services. The Client recognizes that even with such checks SDI cannot guarantee that viruses or malware attacks will not occur once the asset has been delivered and it is the client’s responsibility to ensure that the asset undergoes continuous checks and protection. Accordingly, SDI shall not be liable for any costs, claims, damages, expenses, or liability (including without limitation consequential loss or damage) arising whether direct or indirect as a result of any viruses or malware occurring for any reason.
31. If the client purchases hosting space through SDI then Hosting charges are billed in advance for a year (unless agreed otherwise) from the date of sale and is recurrently billed every year unless cancelled by the client. Hosting services are provided by an external server hosting company and SDI is not responsible for the performance or uptime/downtime of the server. SDI is not responsible for backing up the files or database on the websites, softwares or apps that it hosts on these servers. Client should seek appropriate backup solutions on his own. Client understands and agrees to use SDI’s hosting services without any liabilities or responsibilities for SDI. Accordingly, SDI shall not be liable for any costs, claims, damages, expenses, or liability (including without limitation consequential loss or damage) arising from any loss of data or files whether direct or indirect occurring for any reasons.
33. SDI disclaims to the fullest extent permitted by law all warranties of any kind whether express or implied. SDI may provide a bug resolution guarantee for delivered services for a period of 180 days from the date of delivery which is not a warranty. SDI disclaims any warranties regarding SDI's services including that they will meet client's requirements, that they will be uninterrupted, timely, secure, or error-free. Client’s use of SDI's services is at client’s own risk. SDI disclaims any warranties regarding the quality of any services information or other material purchased, advertised or obtained through SDI's services. Client understands and agrees that any material downloaded or otherwise obtained through the use of SDI's services are done at client’s own risk and that client will be solely responsible for any damages to client’s computer system or loss of data or any other liability that results from the download or transfer of such material.
34. CLIENT UNDERSTANDS AND AGREES THAT SDI, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE SDI'S SERVICES, RELIANCE ON SDI'S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF SDI'S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH SDI'S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT'S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO SDI'S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO SDI'S SERVICES.
35. Without limiting the foregoing, under no circumstance shall SDI be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light or air conditioning.
36. SDI'S FULL AND COMPLETE LIABILITY, IF PROVEN, FOR ANY REASON WHATSOEVER, SHALL BE LIMITED TO THE FULL REFUND OF ALL MONIES PAID TO SDI IN THE PREVIOUS 60 DAYS FROM THE DATE OF SDI BEING NOTIFIED OF A CLAIM. CLIENT EXPLICITLY AGREES TO THIS AND AGREES TO NOT MAKE ANY CLAIM OF LIABILITY BEYOND THIS UNDER ANY CIRCUMSTANCES. THIS IS THE MAIN ESSENTIAL CLAUSE OF THIS CONTRACT AND AGREEMENT.
37. Client waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against SDI, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission. Client further agrees that it may only bring claims against SDI in Client's individual capacity and not as a member of a class.
38. Client agrees to defend, indemnify and hold harmless SDI, its directors, officers, employees and agents from and against all claims and expenses, including attorneys fees that may arise or result from any content Client submits, posts, transmits or makes available through SDI's services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by SDI or from Client's breach or violation of this Agreement, including any obligation, representation, or warranty made herein, or Client's violation of any rights of another. Client further agrees to defend, indemnify and hold harmless SDI, its directors, officers, employees and agents from and against all claims and expenses, including attorneys fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client's negligence toward third parties.
39. Client agrees to provide all content, including but not limited to images, text and specifications. It is the Client's responsibility to ensure that all content submitted to SDI is original content and free from third-party copyright or trademark protection. Client assumes full liability and will indemnify SDI for any copyright or trademark infringement of Client's website and/or Software and/or app on any third-party copyright or trademark, including, but not limited to, any infringement due to website and/or Software and/or app content, design or the look and feel of Client's website and/or Software and/or app. Because of the nature of SDI's business involving multiple projects simultaneously, SDI may not maintain a repository of client content and cannot return original content to the Client. If the client makes a request in writing to destroy the content, then the content will be destroyed, however, SDI has no liability and does not guarantee the return of any content to Client.
40. SDI is not liable or responsible for any content, activities or businesses conducted on the Client App, website and/or Software and the Client agrees to bear full responsibility for the same in the event of any action from a third party and agrees to hold SDI harmless in the event of third parties legal issues brought against Client for Client's business practices and indemnify SDI on the same. Client agrees to comply with all laws of the courts of Santa Clara county in California, U.S.A regarding online conduct and acceptable content and to adhere and comply with all those laws and regulations. SDI may at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice if it deems that the client is in violation of this clause. In this case, the client will not be eligible for any refund of payments or fees provided to SDI by the client.
41. SDI may provide creative content writing and content dissemination services to a client. This is provided in good faith and as an additional service on a client’s request by SDI content creation personnel. SDI cannot and will not check the content for any copyright infringement but will ensure that all created written content is original.
42. SDI provides its services with help and input from the Client. The design, functionality and detail of the sample sites, references and/or Apps/websites/softwares provided by the client will not be duplicated unless such design, functionality and detail are specifically requested by the client. It is a client’s responsibility to ensure that these do not infringe upon the intellectual property rights of others and SDI cannot be held liable for any infringement on the rights of others.
43. Client acknowledges and agrees that SDI's services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of SDI's services.
44. Client hereby agrees that any information submitted to SDI by any means may be used by SDI without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing website and/or software and/or apps, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to proprietary information covered by SDI’s Non-Disclosure agreement if previously signed between SDI and the client except if required by law.
45. Client hereby gives permission to SDI to use samples or links to services and or assets delivered by SDI including but not limited to Client's custom website and/or Software and/or app designed and/or developed by SDI for marketing and advertising purposes, including but not limited to, use in SDI's online portfolio and/or websites. SDI reserves the right to place its link/title/name on websites and/or apps and/or software designed or programmed by SDI.
46. The Client agrees that it shall not during the continuance of this Agreement and for a period of 3 years following the expiration or termination of this Agreement (however arising) employ, solicit or contract the services of any person or independent contractor who is or was employed or engaged by SDI. Should there be a breach of this condition SDI will be entitled to liquidated damages in the amount of $10,000.00 for each instance of solicitation, contract or employment. Further, SDI shall be entitled to litigate this matter, and obtain the money damages, attorney fees & costs together with injunctive relief.
47. Client specifically agrees not to engage in negative comments or slander regarding SDI, including but not limited to publishing, or causing to be published, complaints or derogatory comments regarding SDI in any format, including but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. Should there be a breach of this condition SDI will be entitled to liquidated damages in the amount of $2,500.00 for each publishing or posting. If said breach occurs on an internet complaint site each instance to that website and/or Software and/or app will be considered an individual breach of this condition, and subject to additional liquidated damages of $100 per occurrence. Further, SDI shall be entitled to litigate this matter, and obtain money damages, attorney fees & costs together with injunctive relief. SDI reserves the right to terminate any account for any negative postings made by the account owner or its representatives, or employees.
48. Client acknowledges that SDI may establish general guidelines and limits concerning use of SDI's services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained, maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on SDI's servers on Client's behalf.
49. SDI reserves the right to change its pricing at any time including but not limited to hosting, per hour rates, Daily, weekly or monthly dedicated personnel costs and hourly design fees. All prices are in U.S. Dollars (USD) without regard to fluctuations in foreign exchange rates. SDI accepts payment via wire transfer, check and credit card. Upon Client's authorization of payment to SDI via credit card, Client authorizes all recurring hosting and/or additional services fees to be charged to the same method of payment for future charges until such authorization is withdrawn by Client in writing. The Client may change payment methods including credit card payments with 30 days notice. To change payment methods Client should contact SDI. Client should not email new billing information for security purposes. SDI reserves the right to hold Client, its principals and authorized representative(s) jointly and severally liable for any and all amounts owed.
50. If SDI does not receive payment in full when due, SDI may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $100 per month, whichever is greater, on any unpaid balance. SDI may also engage the services of a collection agency to collect its balances. To the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, SDI may also charge Client for any collection agency fees and/or attorney's fees billed to SDI for collecting from Client.
51. If Client wishes to dispute a credit/debit card charge, Client must first contact SDI (requests may be emailed to firstname.lastname@example.org) and must allow 10 business days for a response. To avoid any dispute about Client's attempt to contact SDI, Client must also send the request by certified mail to:
Attn: Software Developers Inc, 12, Bunyip Walk,Caroline Springs,VIC - 3028, AU
If Client initiates a credit/debit card chargeback unilaterally and the credit/debit card issuing authority reverses the charge, then SDI reserves the right to proceed with filing a lawsuit to recover its fees. SDI, at its sole discretion, may also suspend work on its services for the client and suspend access to our services until this dispute has been resolved.
52. SDI may contract with Independent Contractors (and/or Independent companies) to complete a portion, or all of SDI’s services mentioned in this agreement including but not limited to the Client's custom website and/or Software and/or app. The Client agrees not to do business directly with the Independent Contractors, nor to remit payment to the Independent Contractors or any SDI employee directly for services. All payments for services rendered must be made directly to SDI. Independent contractors are required to follow SDI policies and procedures. Independent Contractors are provided with only the information needed to complete the contracted service and do not have access to Client's personal information including payment information.
53. Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by email or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email (Requests may be emailed to email@example.com.), a copy of the request must also be sent by certified mail (to the address below) as confirmation of the request.
Attn: Director, Software Developers Inc, 12, Bunyip Walk,Caroline Springs,VIC - 3028, AU
54. Client may contact SDI at 408.647.2206 Monday through Friday (U.S. Working days) from 9:30 am to 3:30 pm Pacific Standard Time. Client may also email SDI for general questions at firstname.lastname@example.org.
55. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision the remainder of this Agreement shall remain valid and enforceable according to its terms. The failure by SDI to avail itself of any right or enforce any obligation of this agreement shall not be deemed to be an ongoing waiver of such right or obligation or of any other right or obligation.
56. This agreement shall be governed exclusively by the laws of the State of California, USA, without regard to any conflicts of law provisions thereof, as a contract entered into and performed entirely within the State of California. The parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods. Any disputes between the parties relating to the subject of this agreement shall be submitted exclusively to the jurisdiction of the state courts located in the State of California and county of Santa Clara and the parties expressly consent to personal jurisdiction and venue therein and waive any objection based on forum non conveniens or otherwise. Should there be a breach of this provision, the non-breaching party shall be entitled to an award of attorney fees.
57. Client explicitly agrees that notwithstanding the foregoing, in lieu of litigation, arbitration may be used as a means of resolving disputes. Arbitration would be through a neutral third-party arbitrator to be approved by both Client and SDI. The decision of the Arbitrator will be binding on the client and SDI. If the parties cannot agree on an arbitrator, then the client may enter into litigation by pursuing the dispute in a court of law exclusively and only in the State of California and county of Santa Clara.
58. SDI reserves the right to subcontract services or assign the ongoing servicing and/or hosting of your account or this entire Agreement to another party at its sole discretion. This agreement shall not be affected by any change in the name of Software Developers Inc, it's DBAs or any other affiliated companies, or any condition, merger or acquisition of Software Developers Inc, and shall be automatically assigned to any successor entity of Software Developers Inc and shall continue in effect thereafter in accordance with its terms.
59. This Agreement constitutes the entire understanding and contract between the parties . Any modifications to this agreement must be in writing and signed by an authorized officer of SDI. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this Terms of Service.
60. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of SDI's services or this Agreement must be filed within 60 days after such claim or cause of action arose or be forever barred.