EEZY APPS SERVICE AGREEMENT
THIS AGREEMENT is made on this day of 2012
BETWEEN: EEZY APPS PTY LTD (ACN ) of
(“Eezy Apps”)
AND: [ ] (ACN ) of
(“the Client”)
BACKGROUND:
- Eezy Apps will develop for the client a personalised Mobile Application.
- The Mobile Application will be made available to Customers through the Application Stores.
- Customers once having installed the Mobile Application on their Mobile Device will be able to place Orders and pay by credit card through the Mobile Application.
- The Client will receive the Orders via the Mobile Application by the Method of Communication.
THE PARTIES AGREE:
1. DEFINITIONS
Agreement means this Service Agreement.
Application Stores means the iTunes Application Store and Android Marketplace.
Commission Fee means the fee payable by the Client at the Commission Rate on all Orders.
Commission Rate means the rate set out from time to time on the Eezy Apps website.
Confidential Information means all information that either Party considers confidential. It shall include, but not be limited to, any and all methods, processes, strategies, equipment, plans, formulas, software, programs, sales and marketing information, technical and financial information, data, know-how, documentation and other information disclosed, whether disclosed visually, orally, or in writing, and whether or not tangibly recorded, by one Party to the other Party.
Credit Card Surcharge means the rate as set out from time to time on the Eezy Apps website.
Customer means anyone who installs the Mobile Application on their Mobile Device.
Effective Date means the date stipulated at the beginning of this Agreement.
Flat Fee means the fee payable by the Client at the Flat Rate on all Orders
Flat Rate means the rate set out from time to time on the Eezy Apps website.
GST means the meaning given to that term in the GST Act.
GST Act means the Act known as A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means the Mobile Application, the Portal, the website and any and all Eezy Apps marketing materials and advertisements.
Method of Communication means the method by which the Orders will be communicated by Eezy Apps to the Client as set out in clause 5.
Mobile Application means a software application that is available from the Application Stores and usable on a Mobile Device.
Mobile Device means any device capable of purchasing the Mobile Application from the Application Stores.
Orders means any goods or service request made by a Customer through the Mobile Application, including, home delivery, takeaway and in Client service.
Party means a party to this Agreement.
Portal means that online login system on the Eezy Apps website.
Setup-Fee means the rate as set out from time to time on the Eezy Apps website.
2. RELATIONSHIP
It is expressly agreed by the parties that the relationship between Eezy Apps and the Client will not be that of a partnership or joint venture and that no partnership or joint venture is constituted by this Agreement.
No Party will be in anyway responsible for the actions or inactions of the other Party.
3. THE MOBILE APPLICATION
Upon the Effective Date and receipt of the Set-up Fee, Eezy Apps will promptly develop and deliver a Mobile Application for the client which will be available in the Application Stores.
The Customers of the Client will be able to purchase at no charge the Mobile Application from the Application Store.
When a Customer places an Order for goods from the client, the Mobile Application will process and deliver that Order to the Client through the Method of Communication.
4. RESPONSIBILITY OF THE CLIENT
The Client is required to promptly provide Eezy Apps the following details / items through the Portal:
i. Business / Trading Name
ii. Client logo
iii. Current contact details
iv. Current menu or product list (electronically if possible)
Orders will be sent to the Client via the Method of Communication; any problems with the Client’s physical components for receiving Orders including but not limited to computers, fax machines, phones, internet services and electrical services, are the sole responsibility of the Client and Eezy Apps is not liable for any failures or malfunctions thereof.
The Client will be required to keep the Mobile Application updated through the Portal.
5. RESPONSIBILITY OF EEZY APPS
Eezy Apps will assist the Client in the development of the Mobile Application.
Eezy Apps will send each Order to the Client by the agreed Method of Communication.
Eezy Apps will offer a secured credit card facility through the Mobile Application allowing Customers to pay for Orders made through the Mobile Application.
At the discretion of Eezy Apps, Eezy Apps will charge a Credit Card Surcharge on all credit card payment made as per clause 4(c).
The Mobile Application is physically hosted by Eezy Apps’ owned or leased servers, and is maintained in constant operation by Eezy Apps or its associates to the best of Eezy Apps’ commercial effort.
6. METHOD OF COMMUNICATION
The Methods of Communication will be through email to a nominated email address and one of the following as agreed by the parties:
i. short message service (SMS) to a nominated mobile phone (not available for wholesalers);
ii. facsimile to a nominated Fax Machine;
iii. customised eprinter;
iv. Portal: or
v. tablet notification.
Eezy Apps will use its best endeavours to ensure that all Order made through the Mobile Application are sent to the client in a timely manner through the Methods of Communications.
Eezy Apps take no responsibility for any failures or delays in communicating the Order.
7. EEZY APPS MOBILE APPLICATION LICENSE
Eezy Apps hereby grants the Client and its Customers a non-exclusive license to download, install and use the Mobile Application as set out herein.
Eezy Apps hereby grants the Client a non-exclusive license to access the Portal in a limited manner as set out herein.
8. INTELLECTUAL PROPERTY
Eezy Apps Intellectual Property is the sole and exclusive property of Eezy Apps.
The Client will not use Eezy Apps Intellectual Property or any part thereof other than as permitted by this Agreement or in a manner inconsistent with its design.
The Client will not modify, port, adapt or translate Eezy Apps Intellectual Property.
The Client retains ownership of all intellectual property that it provides to Eezy Apps as provided for in clause 3(a).
The Client hereby grants Eezy Apps the right to use the items provided in clause 3(a) in relation to development, support, marketing and advertising of the Mobile Application.
9. FEES
The Client will pay Eezy Apps a Setup Fee on the Effective Date for (i) development of the Mobile Application (ii) the submission to the Application Stores (iii) access to the Portal.
The Client shall at the election of Eezy Apps pay either:
i. a Commission Fee at the Commission Rate for each Order placed through the Eezy Apps service. Cancelled Orders will not be charged this fee if reported via the Portal; or
ii. a Flat Fee at the Flat Rate.
Payments to Eezy Apps of the Commission Fee shall be made on Tuesday each week as follows:
i. Eezy Apps will send an electronic copy of each weekly tax invoice to the email address nominated by the Client.
ii. The Client must make payment on that day by the agreed method.
iii. The Client is required provide details of its credit card to be held on file by Eezy Apps; in the event of any non-payment as required under clause 9(c)(ii) the Client authorises Eezy Apps to charge the full amount due on the provided credit card.
Payment to Eezy Apps of the Flat Fee shall be made on the Tuesday each week.
i. The Client must make payment on that day by the agreed method.
ii. The Client is required provide details of its credit card to be held on file by Eezy Apps; in the event of any non-payment as required under clause 9(d)(i) the Client authorises Eezy Apps to charge the full amount due on the provided credit card
All refunds for whatever reason required to be made to the Customer are the sole responsibility of the Client.
10. EXTRAS
Eezy Apps will continue to develop the Mobile Application to include enhanced features.
The extras outlined in clause 10(a) are not included as part of this Agreement and Eezy Apps has ultimate discretion as to which it offers any at all and the costs associated in offering said extras.
11. GST
Except where this Agreement states otherwise, each amount payable by a Party under this Agreement in respect of a taxable supply by the other Party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount and at the same time, pay to the supplier the GST payable in respect of the supply.
12. HARDWARE
It is the responsibility of the Client to provide all hardware required for receiving Orders through the Mobile Application.
Eezy Apps from time to time may recommend particular hardware and provide details of a preferred supplier of any recommend hardware.
Eezy Apps will take no responsibility as to the quality and cost of the hardware purchased from a preferred supplier.
13. TERM & TERMINATION
This Agreement has no fixed term.
Either party may terminate this Agreement by providing the other party with two (2) weeks notice in writing.
In the event of this Agreement is terminated Eezy Apps will use its best endeavours to disable the Mobile Application and all amounts owing by either party will be paid forthwith.
14. NON-EXCLUSIVE
This Agreement is non-exclusive, and Eezy Apps does not make any commitment for or guarantee any minimum or maximum amount of Orders by Customers.
Eezy Apps retains the right to enter similar agreements with other Clients, whether they are the Client’s competitor or not.
15. WARRANTIES
Each Party represents and warrants to the other that the individual signing this Agreement on its behalf has the full right, power and authority to bind the respective Party fully thereto.
16. DISCLAIMER OF WARRANTIES
Except as expressly set forth in this Agreement, Eezy Apps makes no representation or warranty, express, implied or statutory, regarding any and all products, services, content, equipment or facilities, including without limitation, warranties of quality, performance, non-infringement, merchantability or fitness for a particular purpose.
Except as expressly set forth in this Agreement, Eezy Apps does not guarantee that the operation of the Portal or the performance of the Mobile Application will be error-free or uninterrupted or free from viruses or other malignant data processes.
Neither Party guarantees that data submitted or held in storage on or through its systems associated with the Internet will be secure from unauthorized access.
17. LIMITATION OF LIABILITY
To the extent permitted by law, in no event shall Eezy Apps be held liable for indirect, special, incidental or consequential damages arising out of Mobile Application.
To the extent permitted by law, the liability, if any, of Eezy Apps under this Agreement is strictly limited to a maximum of the Commission Fee paid by the Client for the prior six (6) months.
18. INDEMNITY
The Client indemnifies Eezy Apps against any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs (including solicitor and client costs), charges and expenses arising out of the Client’s acts or omissions in connection to the Mobile Application including a failure to complete the Orders to the standard required by the Customer or any breach of this Agreement by the Client.
19. CONFIDENTIAL INFORMATION
Each Party will use or copy Confidential Information only to exercise its rights and perform its obligations under this Agreement.
Each Party will protect Confidential Information with the same degree of care as it uses to protect its own Confidential Information of like importance, but not less than reasonable care.
Each Party may disclose Confidential Information only to employees, affiliates, or agents on a “need to know” basis, for the purposes set forth in this Agreement.
Each Party is responsible for compliance with this Agreement by all persons or entities to which it grants access to Confidential Information, and will advise them of their obligations under this Agreement.
20. EXPENSES
Each Party will bear all of its own expenses necessary to meet its duties and obligations under this Agreement.
21. PRESS RELEASES
Any press releases, or media releases, or other similar public announcements by the Client concerning this Agreement or the business arrangement established by this Agreement must be approved by Eezy Apps prior to their release to any news outlet.
22. SEVERABILITY AND FRUSTRATION OF PURPOSE
All clauses and covenants contained in this Agreement are severable.
In the event that any clause or covenant of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.
23. NOTICES
All notifications between the Parties relating to this Agreement must be made in writing by fax or e-mail.
24. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding and supersedes all prior and contemporaneous Agreements between the Parties relating to the subject matter contained herein and merges all prior and contemporaneous discussions between them.
Neither Party shall be bound by any definition, condition, representation, warranty, covenant or provision other than as expressly stated in or contemplated by this Agreement or as subsequently shall be set forth in writing and executed by an authorised representative of the Party to be bound.
25. GOVERNING LAW
This Agreement and all orders hereunder shall be governed by and construed under the laws of the State of Victoria.