This document describes the terms under which First Strike Solutions provides services to clients and is applicable on a per-project basis and in respect of all development and support services we provide. They do not apply to the use of our software products each of which is covered by specific Terms of Service documents.
These terms form an agreement between us and our clients. They may be varied from time to time, and will apply to all custom development projects and services provided by us. These terms do not apply where a specific agreement has been made in relation to a particular project, in so far as the terms of the specific agreement are inconsistent with these terms. For example, other terms may be agreed and recorded in project estimates we provide or in other documentation such as statements of work or similar.
Certain words used in these terms have particular meanings as described in the ‘Definitions’ section towards the end of these terms.
We will treat all information supplied to us by the client in the course of a project as confidential except as expressly agreed by the client, unless we are compelled by law to reveal such information. The information we shall treat as confidential includes knowledge of the client's business processes, computer systems and any sample data supplied by the client, documented or otherwise. We will take all reasonable measures to protect the confidentiality of this information, and will inform the client promptly if we become aware of any breach of this undertaking. We need not treat information as confidential if we are already aware of the information, or if we become aware of it in some manner not being by the client in the course of the project.
We retain ownership of the copyright and other intellectual property rights in all software created or developed by us for our clients, including the source code and any related documentation or material. We grant to the client a non-exclusive licence in respect of the software (subject at all times to the rights of relevant third parties with respect to software we are asked to develop). This enables the client to employ an alternate service provider to further develop the software however the client must ensure that such providers are aware, and agree, that they acquire no intellectual property rights in the software (including in its further developed form). The client retains exclusive copyright on all of its business rules and processes implied by the design of the software.
When we perform substantial modifications to existing software the modified version of the software is also covered by these conditions. The client warrants that they own copyright and intellectual property rights on the existing version of any software that we are required to modify. The client agrees to indemnify us should any work or services we perform in accordance with the client’s requirements, instructions or specifications infringe the intellectual property rights of any third party.
The software may be used by any number of users as long as such users are using the software in the course of employment by the client or are enaged to perform services for the client in the ordinary course of the client’s business. The software may not be supplied by the client or its agents to any other entity.
The software may be installed on any number of machines, as long as they are under the full control of the client – that is, located on the client’s business premises or connected to the client’s network if necessary for the purposes of the client’s usual business. The client agrees to inform us promptly if it becomes aware of any breach of these conditions.
We use a prototyping approach to software development that involves frequent modifications and we find it necessary to explicitly state when the development process is complete. When we decide that the software is functionally complete, adequately tested, and effectively implemented we will declare that the project has reached 'practical completion'. Special conditions may apply, and will be documented and agreed with the client at relevant times.
Project estimates often involve a substantial amount of effort on our part to produce, including some preliminary design work. The fee charged for this service and any associated charges are payable regardless of whether the project proceeds or how far it proceeds. Subject to any separate agreement between us and our clients, our fees for such work shall be charged at our rates as advised from time to time.
An initial payment is required before we will proceed with a project. The amount is determined during the estimation phase, and will be specified on the project estimate. This payment is required before we will start work on a project. The estimate may also include a schedule of payments based on project milestones. Where this is the case, the client hereby agrees that those payments are due and owing to us once we declare that such milestones are reached.
The final payment will be invoiced upon practical completion. The total project cost will be based on time actually spent on the project, and may vary from the estimate for a variety of reasons. If the actual cost of the project differs significantly from the estimate, the reasons for the variance will be documented. We will make reasonable efforts to inform the client of likely variations from the estimate as early as possible during the project to facilitate management of the project.
Following practical completion additional work will be invoiced as we decide is appropriate. We may decide to treat additional work on a project as a new project with a new estimate and payment schedule.
Clients will pay all invoices by the due date. When there are overdue invoices relating to a project, we reserve the right to retain the software, to refuse to grant a license in respect of it, to charge interest at prevailing commercial lending rates, and to withhold all support for the project and/or the software until these invoices are paid. We expressly reserve all our rights regarding non-payment or late payments.
Prior to practical completion all work is considered part of the project development. Following practical completion we will take reasonable steps to correct any faults found in the software should we determine that they are the result of errors on our part free of charge. All such work will only be undertaken as long as there are no overdue invoices relating to the project. If we expend time and effort in locating or rectifying any fault or other matter which transpires not to have arisen as a result or errors on our part or which arises as a result of the client’s specifications or requirements then we shall be entiled to charge the client at our prevailing rates. If we are of the reasonable view that a fault has not arisen as a result of errors on our part then we reserve the right to proceed with error identification or rectification only once we have the client’s agreement as to payment terms for our work expended in respect of the fault.
If the client or its agents modify the software without notifying us of the details of the modifications we may refuse to continue work on the project or we may revert to the last version released by us.
If the client employs an alternative developer to work on the software we agree to support the transition if required by the client. This work will be charged at our standard rate and will be managed as a separate project.
Liability for damages, losses and expenses caused to the client by First Strike Solutions (including caused as a result of use of any software developed or provided by us) whether direct, indirect or consequential is limited to any unpaid fees for the relevant project. We may agree to correct or assist in the correction of a problem free of charge. This will not imply any admission of fault on our part, and we hereby exclude all liability including in respect of our negligence or that of our employees, agents or subcontractors.
We shall use reasonable skill and care in the performance of the services provided by us. We take reasonable measures to help ensure that software developed or provided by us does not contain viruses, trojan horses, or similar. However, we do not warrant or represent that any software developed or provided by us is error-free.
'First Strike Solutions', 'we', 'us' and 'our' refers to First Strike Solutions Pty Ltd ACN 105 378 336, and includes any related or associated entities.
'client' refers to the legal entity to which the service is provided.
'Agent' refers to any person employed by the client in the operation of the client's business. This includes owners, employees and contractors working for all business units of the client and for fully owned subsidiaries of the client.