Web & Application Development, Hosting and Other Services

 

Preamble

This Agreement is dated on the date from when the electronic form is signed, and together denotes acceptance of these terms and conditions.Versions of this agreement are kept at relevant date stamps.

BETWEEN

Human Pixel Pty Ltd, of PO Box 404, Elsternwick 3185, in the State of Victoria. (Human Pixel)

AND

The customer as submitted via an electronic form on the Human Pixel website

(Customer)

It is agreed that:

1. Commencement date and term of the Agreement

1.1 The Agreement between Human Pixel and the Customer commences on the date this Agreement for the Human Pixel Service is accepted by Human Pixel.

1.2 This Agreement includes these Terms and Conditions, all attached Schedules and any product or service specific Terms and Conditions, and continues in force until terminated by either party in accordance with the terms of this Agreement

2. Web & Application Development, Hosting, Design & Other Services Terms & Conditions

2.1 Where Human Pixel’s quote is accepted by the Customer, this Agreement applies to those services

2.2 The Customer and the Registered Users must use Human Pixel’s service in accordance with all applicable laws, and with the Acceptable Use Policy which can be amended by Human Pixel from time to time

2.3 If the Customer downgrades the Human Pixel service or product to one of a lesser value, Human Pixel may impose an administration fee being reasonable compensation for the work already undertaken by Human Pixel based on the higher package which is then downgraded

2.4 Human Pixel performs planned maintenance to servers from time to time. If planned maintenance requires the service to be offline for more than 30 minutes, Human Pixel will inform its Customer of that planned maintenance. It will do this at least 48 hours in advance of the planned maintenance.

2.5 If unplanned maintenance requires the Human Pixel service to be offline for more than 30 minutes, Human Pixel will, to the best of its ability, endeavour to inform all the customers that could be affected by that outage. While every endeavour will be made to contact the Customer at that time, it foresees situations where the Customer is unreachable.

2.6 Human Pixel will make reasonable efforts to archive the Customer’s data onto backup mechanisms on a monthly basis for the purposes of disaster recovery.

2.7 In the event of equipment failure or data corruption, Human Pixel will restore from the last known back-up. However, the Customer should maintain a recent copy of their data either at their own premises or elsewhere at all times. Human Pixel will not accept liability for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from its or the Customer’s back-ups.

2.8 Human Pixel may use spam and virus filters, which may require the use of third party equipment, or a service to monitor and filter email traffic between the equipment of Human Pixel and the Internet. The Customer agrees that Human Pixel will not be liable for any loss resulting from any use of spam or as a result of a virus.

2.9 By contracting with Human Pixel, the Customer does not acquire rights to the hardware or other infrastructure & facilities used by Human Pixel to deliver the service to the Customer.

2.10 Human Pixel may sub-contract all or any part of the performance of this Agreement to one or more third parties

2.11 The Customer will be deemed to have accepted the Customer’s website or any other Human Pixel Service [10 days] after delivery by Human Pixel, except to the extent that the Customer notifies Human Pixel within that period of any changes to the Customer’s website, or the relevant Human Pixel service to comply with this Agreement

2.12 If the Customer requests Human Pixel to provide any services not listed in the order form then:

a) Human Pixel may provide a quote for the provision of those services; and
b) a quote is deemed accepted when either the order form is completed and signed by the Customer or an acceptance is made by electronic mail.

3. Fees and Charges
Terms of payment

3.1 The Customer agrees to pay to Human Pixel the fees and usage charges in accordance with Human Pixel’s prices in this Agreement, and in accordance with the Human Pixel schedule of payments for the Human Pixel Service, as agreed, and as may be varied by Human Pixel from time to time

3.2 The Customer agrees to pay Human Pixel in accordance with the payment schedule (in this Agreement)

3.3 Fees and charges are exclusive of all GST unless specified as GST inclusive.

Billing

3.4 Human Pixel offers direct debit from a bank account or credit card as forms of payment

3.5 Where the billing option does not specify otherwise, all service fees and charges are payable within 14 days of the date of the invoice.

Establishment related expenses

3.6 The Customer must provide and pay for:

a) the installation and use of telephone lines and all other equipment needed to access the Human Pixel Service; and

b) all government taxes, duties and levies (if any) and GST imposed on either you or us in respect of the Human Pixel Service.

3.7 Human Pixel will not provide any Human Pixel Service pursuant to this Agreement until:

a) this Agreement is accepted by the Customer and Human Pixel; and

     b) all applicable payments and/or deposits are paid by the Customer.

3.8 Human Pixel will not refund any payments and/or deposits if the Customer terminates this Agreement; or does not use any Human Pixel Service paid for by the Customer unless otherwise agreed by both parties.

3.9 Human Pixel reserves the right to invoice the Customer directly for any approved out of scope work and also for all reasonable out of pocket expenses incurred in the event of any issues not found to be directly attributable to the service Human Pixel provides.

Use of credit card

3.10 If the Customer intends to use their credit card to pay Human Pixel, the Customer must register the relevant credit card account with Human Pixel, and provide authorisation to debit the Customer’s credit card for all charges

3.11 A surcharge for credit card payments may be imposed as set out in the Schedule 2.

Collection

3.12 If payment remains outstanding for an extended period of time, we may pass the debt over to a collection agency and the Customer will be liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Human Pixel for enforcement of obligations and recovery of monies due from the Customer to Human Pixel.

4. Customer's warranties and indemnities

4.1 The Customer will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by the Customer onto or downloaded by the Customer from the Human Pixel server does not contain any computer virus and will not in any way, corrupt the data or systems of any person

4.2 The Customer will keep secure any passwords used with the Human Pixel Service

4.3 The Customer is solely responsible for dealing with persons who access the Customer’s data, and must not refer complaints or inquiries in relation to such data to Human Pixel.

4.4 The Customer indemnifies Human Pixel against all losses that Human Pixel may suffer (directly or indirectly) resulting from:

a) the Customer’s breach of this Agreement;

     b) the Customer’s use or misuse of the Human Pixel Service;

     c) the use or misuse of the Human Pixel Service by any person using the Customer’s account; and,

     d) the publication of defamatory, offensive or otherwise unlawful material on the Customer’s website.

4.5 If the Customer’s use of the Human Pixel Service involves storage, processing or transmission of or access to any credit cardholder data, the Customer warrants that the tools, programs, processes and technologies they use to do so comply with the Payment Card Industry Data Security Standard (‘PCI Standard’) which is available at https://www.pcisecuritystandards.org

4.6 If the Customer breaches any of these warranties, Human Pixel may terminate this Agreement immediately. In such instances, it will provide written notice to the Customer of the termination.

5. Human Pixel's warranties and liabilities

5.1 Human Pixel accepts liability for the supply of the Human Pixel Service, but only to the extent provided in this clause of this Agreement

5.2 Human Pixel does not warrant that :

a) the Human Pixel Product or Service provided under this Agreement will always be uninterrupted or error free;

     b) the Human Pixel Product or Service will meet the requirements of the Customer other than as expressly set out in this Agreement, or

     c) by the very nature of the Human Pixel Service, the Human Pixel Service will be free from external intruders (hackers), virus or other actual or viral attacks, denial of service attack, or other person or persons will have unauthorised access to the Human Pixel Service or systems of Human Pixel from time to time.

5.3 Human Pixel accepts liability where:

     a) the Human Pixel Service is not supplied to the Customer with due care and appropriate skills;

     b) any material supplied in connection with the Service is not reasonably fit for the purpose for which it was supplied; and

c) Human Pixel is required to do so by the Trade Practices Act 1974

5.4 Except as expressly provided to the contrary to this Agreement, Human Pixel does not accept liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected or projected profits or savings or any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement and/or its subject matter.

5.5 Other than the liability accepted by Human Pixel in clause 3, Human Pixel’s total liability for loss of any kind not excluded by clause 5.4 however caused in contract, tort (including negligence), under any statute or relating to this Agreement is limited in the first instance to the repair of any agreed deficit in the Product or Service, or failing this, to the aggregate for any claims to the fees paid by the Customer for this specific Product or Service pursuant to this Agreement in the previous 12 month period.

5.6 Whilst we highly recommend that Human Pixel hosts the finished solution, where the Customer chooses to move the site/application to a different environment then Human Pixel cannot warrant the solution once it is moved from our servers.

6. Termination

6.1 The Customer may terminate this Agreement by providing at least four weeks written notice to Human Pixel. Any unused pro-rata portion of monthly service fees may not necessarily be refunded to the Customer.

6.2 Human Pixel may terminate this Agreement:

a) by providing four weeks written notice to the Customer;

b) immediately & without notice, if the Customer breaches this Agreement; or

c) if required by Law or Court Order.

6.3 Upon termination of this Agreement, the Customer will be provided with an invoice in relation to any Human Pixel Service used prior to termination.This invoice must be paid using the same payment method agreed to on the order form. All prior invoices immediately become due and payable upon termination of this Agreement.

6.4 Upon termination of this Agreement, Human Pixel may delete the Customer’s website from Human Pixel’s computer system or prevent access to the Customer’s website or other services.

7. Registered Users

7.1 The Customer may nominate one or more Registered Users as agreed with Human Pixel to access and change the Customer’s website and, if applicable, to access the Customer’s email service

7.2 Each Registered User of the Customer will have:

a) a User ID and initial Password; and

b) a current email address and mailbox, if email is provided by Human Pixel as part of the Service requested by the Customer.

7.3 All access to and use of any Human Pixel Service under a User ID and Password will be assumed to be access and used by the Registered User to whom the User ID has been allocated.

7.4 The Customer is responsible and liable for all usage fees, and for all damages that Human Pixel may claim as a result of any loss it can prove (actual or in tort) for the use and misuse of any Human Pixel service, by any person using a User ID allocated to a Registered User of the Customer.

8. Suspension and Cancellation of Service

8.1 The Customer may cancel the Human Pixel Service or part of the Human Pixel Service by notifying Human Pixel in writing.

8.2 If the Customer cancels a Web or Application Design Service:

a) prior to the job commencing, Human Pixel will not refund the deposit paid by the Customer;

     b) whilst the job is in progress, Human Pixel will bill the Customer for time spent to that time; and,

     c) if the job is complete, Human Pixel will not refund the Customer any portion of their payment. The Customer must pay Human Pixel the total amount owing, as per the order form

8.3 Human Pixel may suspend or cancel any Human Pixel Service, delete the Customer’s website from Human Pixel’s hosting environment, or prevent access to the Customer’s website, if:

     a) there is an emergency;

     b) the Customer does not pay an invoice on time;

     c) the Customer becomes bankrupt, insolvent or has a receiver, manager or a liquidator appointed;

     d) the Customer or a Registered User’s use of Human Pixel Service interferes with the proper operation of Human Pixel;

     e) the Customer breaches this Agreement;

     f) Human Pixel believes (regardless whether the belief is reasonable or not in the circumstances) that the Customer’s website infringes or may infringe another’s Intellectual Property Rights, is defamatory, or may            involve Human Pixel in a legal dispute;

     g) the Customer brings legal action against Human Pixel;

     h) the Customer’s level of use of the Human Pixel Service is significantly greater than average use by other customers of the Human Pixel Service as reasonably determined by Human Pixel; or

     i) Human Pixel is required to do so by Law or a Court Order.

8.4 If any Service is cancelled or suspended pursuant to clause 3, then any other Human Pixel Service being provided may also be cancelled or suspended.

8.5 Human Pixel may temporarily suspend a service if it is necessary to allow Human Pixel to perform maintenance. In doing so, Human Pixel will attempt to give the Customer prior notice of the suspension and will attempt to minimise inconvenience to the Customer.

9. Ownership

9.1 The Customer retains ownership of the finished software/website provided by Human Pixel and delivered to the Customer.

9.2 Human Pixel has no ownership rights in the Customer Content.

9.3 The Customer grants Human Pixel a worldwide, non-exclusive, perpetual, irrevocable, royalty-free licence to:

a) reproduce the Customer’s content for the purposes of performing its obligations under this Agreement, making backups of the Customer’s website or otherwise operating the Customer’s website;

     b) grant sub-licences to third parties browsing or wishing to browse the Customer’s website allowing them to browse the Customer’s website; and

     c) sub-license the Customer’s content to any third party to allow them to assist Human Pixel in performing its obligations under this Agreement.

9.4 The Customer warrants that the Customer’s content does not and will not infringe the Intellectual Property Rights of any other person.

9.5 The Customer indemnifies, and will waive any liability that it may otherwise pursue against Human Pixel in the event that a Claim is made directly against This will include any claim or loss arising out of or resulting from any claimed or actual infringement of Intellectual Property Rights by the Customer or relating to the Customer’s website.

9.6 The ownership of any website, software or domain name is retained by the Customer only after payment in full of any outstanding invoices related to that website, software or domain name is made to Human Pixel Pty Ltd including any Late Fees or Penalties.

10. Addresses and Domain Names

10.1 The Customer is responsible for the provision of the Customer content for the Customer’s website.

10.2 The Customer is responsible for all approvals, consents and permissions necessary in relation to the Customer’s website.

10.3 The Customer acknowledges that Human Pixel’s Service may be provided using third parties. If Human Pixels use of such third party service or products is restricted or interrupted, then this may affect the provision of Service to the Customer. Human Pixel is not liable to the Customer if this occurs.

10.4 Human Pixel does not own or control the Internet and is not responsible for Internet problems, faults or delays.

11. Privacy

11.1 The Customer must ensure that each Registered User and any other individual whose personal information (as defined in the Privacy Act 1988) is made available to Human Pixel in connection with this Agreement has received all notifications and provided all consents required under that Act for Human Pixel to lawfully collect, use and disclose their personal information for the purpose of fulfilling its obligations under this Agreement This may require the Customer to inform those individuals of matters in the Human Pixel Privacy Policy.

12. Variations

12.1 Human Pixel may vary the terms of this Agreement by written notice to the Customer. If the Customer objects to the change in terms, the Customer must notify Human Pixel in writing as per the Dispute Resolution process outlined in Clause 15.

12.2 If Human Pixel changes the details or pricing for any service it offers where the change will not affect the Customer, Human Pixel is not obliged to notify those unaffected customers of the specific change.

13. Notices

13.1 A notice or communication to a party under this agreement must be in writing in English.

13.2 Written notices by the Customer to Human Pixel must be by email to accounts@humanpixel.com.au or by mail to Human Pixel’s address set out in this Agreement or as updated by written notice from Human Pixel from time to time.

13.3 Written notices by Human Pixel to the Customer must be by email or mail to the email or mail address set out in the order from as updated by written notice from the Customer to Human Pixel from time to time.

14. Miscellaneous

14.1 Human Pixel is not liable for any failure to comply with this Agreement if that failure is caused by an act beyond Human Pixel’s reasonable control, which includes but is not limited to Acts of God, Force Majeure or deliberate acts of sabotage by parties external to Human Pixel. 

14.2 The Customer may not transfer this Agreement or any service provided under this Agreement without Human Pixel’s prior written consent. Human Pixel may assign this Agreement to a third party without the Customer’s consent.

14.3 Clauses 4, 5, 6.4, 9, 13, 15 and 17 survive the termination of this Agreement or cancellation or suspension of the Human Pixel Service or any part of the Human Pixel Service.

14.4 The Customer may not set-off any claim against amounts payable to Human Pixel.

14.5 Human Pixel may, but is under no obligation to, monitor the Customer’s website (including its non- public sections) to ensure compliance with this Agreement and for any other reason considered appropriate by Human Pixel.

14.6 The Customer expressly permits and authorises Human Pixel to furnish to the Customer, electronically or by any other means selected by Human Pixel, information including advertising information and solicitations.

14.7 Human Pixel is willing to enter into this Agreement only if the Customer accepts all the terms of this Agreement

15. Dispute Resolution

15.1 If there is a dispute between Human Pixel and the Customer then the disputing Party must provide details of its grievance and do so in writing to the other party.

15.2 A party shall nominate a representative who will be that party’s representative for the purposes of this clause.

15.3 If a dispute is not settled within 21 days of service, the dispute shall be referred in the first instance to the parties’ representatives who shall attempt to resolve the dispute including, if necessary, by formal or informal mediation.

15.4 Nothing in clause 15 prevents a party from seeking urgent interlocutory relief in an appropriate court or tribunal.

16. Severability

16.1 Any provision of this Agreement which is or becomes illegal, void or unenforceable shall be ineffective to the extent, only of such illegality, or to the degree of not being valid or unenforceable and shall not invalidate the remaining provisions.

17. Governing Law

17.1 This Agreement is governed by, takes effect and shall be construed in accordance with the laws of Victoria.

17.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, and courts hearing appeals from those courts.

SCHEDULE 1 - Website & Application Development, Hosting & Other IT Services Definitions

‘Agreement’ means this Agreement made between Human Pixel and the Customer and includes the Schedules.

‘Hosting Package’ means the actual website hosting service that either Human Pixel directly provides its customer or, in the case where a third party provides that service, Human Pixel facilitates the provision of this service to its Customer.

‘Business Day’ means a day which is not Saturday, Sunday or public holiday in the state of Victoria.

‘Claim’ means a demand, action or proceeding of any nature whether actual or threatened.

‘Customer Content’ means all material and content provided by the Customer and the Registered Users for inclusion in the Customer’s website or otherwise for the purposes of this Agreement. It also includes content Human Pixel has created and the Customer has approved.

‘Customer’s website’ is the website and/or applications created and/or hosted by Human Pixel pursuant to this Agreement, and includes all data and programs stored by or for the Customer on Human Pixel’s computer system.

‘GST’ means the Goods and Service Tax as imposed by the Government of Australia and as laid down in its ‘A New Tax System’ (1999).

‘Intellectual Property Rights’ means;

a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or                  techniques;

     b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;

     c) confidential information and trade secrets;

     d) trade and service marks (whether registered or unregistered); and

     e) proprietary rights under the Circuit Layouts Act 1989 (Cth).

‘Loss’ means any liability, loss, cost, expense or damage. In relation to any Claim, ‘Loss’ includes amounts payable on the Claim and (whether or not the Claim is successful) legal and other professional costs and disbursements on a full indemnity basis.

‘Registered User’ means a natural person nominated by the Customer and agreed by Human Pixel to have access to the Customer’s website and the Customer’s email service, as per clause 7.

‘Third Party Services’ can include any web hosting or related service that Human Pixel facilitates the provision of by a third party, in order to provide the Human Pixel Service. Examples of this could include hosting services; domain name provisioning and management as well as email management services.

‘Human Pixel Privacy Policy’ means the Human Pixel Privacy Policy in Schedule 3, as updated from time to time. It is publicly available at https://www.humanpixel.com.au/privacy-policy

‘Human Pixel Service’ means any service provided by Human Pixel to the Customer under this Agreement, whether ordered using the respective order form or otherwise agreed between the parties in accordance with this Agreement.

‘Human Pixel Website’ means the website under the domain name humanpixel.com.au. ‘Human Pixel’s ‘Acceptable Use Policy’ means the policies governing the use of the services provided by Human Pixel and contained in Schedule 4.

SCHEDULE 2 - Service Deliverables and Payment Schedule

When you commence a project with us, you will receive this schedule via email as a PDF attachment. This schedule forms part of this Agreement, and as is the nature of the services provided by Human Pixel will change for each project. If multiple projects are performed for the same customer, one or more schedule will exist for each project, all forming part of this Agreement. In the event of multiple projects being performed for the same customer, then the singular “Schedule” should be read as the plural “Schedules” in this Agreement.

LIFETIME WARRANTY

Human Pixel offers a Lifetime Warranty to repair any non-working feature (bug) on any website, web application or programming (the Project), where the following conditions are met:
1. The feature which requires repair was included in the original scope of works
2. The request is not for an enhancement to a feature
3. The Project is hosted on servers which are owned by Human Pixel unless covered by point 6
4. There have been no changes made by the Client or an Agent of the Client to the code of any part of the Project
5. That the support desk (see “Support Desk” section) is used to communicate with our team
6. If the project included modifications to a SAAS system (such as Zoho, Salesforce, or similar) Human Pixel will provide warranty on features where they meet the other requirements unless said feature is impacted by changes made to the software by the software owner or operator which either changed the feature or part of the feature from the way it operated when handed over to the client by Human Pixel

A Limited Warranty will apply to any support request which doesn’t meet all conditions. See “Limited Warranty” section.

LIMITED WARRANTY

Limited Warranty will be provided to Projects which do not meet the criteria for a Lifetime Warranty. Under the Limited Warranty, Human Pixel will repair any non-working feature (bug) on any website, web application or programming (the Project), where the following conditions are met:
1. The feature which requires repair was included in the original scope of works
2. The request is not for an enhancement to a feature
3. Not more than 3 months have passed since the Project Go Live stage
4. There have been no changes made by the Client or an Agent of the Client to the code of any part of the Project
5. That the support desk (see “Support Desk” section) is used to communicate with our team

Support Rates will apply to any support request which doesn’t meet all conditions. See “Other Costs” section.

SUPPORT DESK

Human Pixel offers an online ticket-based Support Desk for the provision of general support related to Lifetime and Limited Warranty sections, above, and for any other “How-to” queries. While this is our preferred method of support interface, support in Emergency or Critical Business impact situations is available via telephone during business hours.