1. The Project
1.1 In consideration of the Client paying the Developer the relevant Fees (as set out in the Project Specification), the Developer shall:
(a) develop the Website in accordance with the procedure set out in the Project Specification on behalf of the Client (the “Project”); and
(b) where agreed between the parties, provide the Services to the Client.
1.2 The Project Specification can be found earlier in this document.
1.3 Any amendments or variations to the Project Specification must be made in writing and agreed between the Parties. Where one Party does not agree with the proposed amendment or variation, the Parties shall meet and discuss the proposed changes in good faith. Where any changes to the Project Specification would result in additional expense to the Developer over and above the Fees, the Developer shall be entitled to charge the Client for the additional expenses at its standard rates from time to time.
2. Delivery and Acceptance
2.1 Upon completion of the Project, the Client shall make full payment of the Fees to the Developer upon which the Developer shall deliver the completed Website to the Client through the Client’s server.
2.2 If the Client requires the completed Website to be loaded onto an external fileserver, the Developer reserves the right to charge additional fees to the Client for this service. The Client is responsible for ensuring that the intended fileserver or disk space is properly configured. The Developer will not load the completed Project onto a publicly available fileserver or disk space on such a fileserver until the Client has complied with the condition laid out in clause 10.1 below.
2.3 Once the Developer has delivered the Website to the Client, the Client shall have a period of 10 working days (the “Acceptance Test Period”) to test the Website to ensure it conforms to the Project Specification (the “Acceptance Test”). Acceptance of the Website may only be withheld by the Client if it can demonstrate that the Website does not conform materially to the Project Specification. Upon completion of the Acceptance Test, the Client shall confirm in writing to the Developer that the Project is complete (the “Project Release”).
2.4 Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the expiry of the Acceptance Test Period and the Client has not raised with the Developer any material differences between the Website and the Project Specification; or
(b) the Client uses any part of the Website other than for test purposes.
2.5 Upon receipt of the Project Release or deemed acceptance, the Developer shall have no further obligations to undertake any work in relation to the Project. The Client may however request that the Developer undertake further work relating directly or indirectly to the Project. If it agrees to undertake such work, the Developer reserves the right to charge the Client for any additional work carried out at its standard rates from time to time.
3. Delivery of Content, Materials and Feedback
3.1 The Client undertakes to deliver to the Developer all content, data, images and other information and all trade marks, trade names, logos and other branding of the Client (the “Customer Content”) required for the Project.
3.2 The Client acknowledges that the Developer’s ability to complete the Project is dependent upon the full and timely co-operation of the Client and the Client undertakes to notify the Developer promptly in writing of any delays in delivering the Client Content. Where the Client has notified the Developer of any delay, the Client will provide the Developer with a revised timetable for supplying such Client Content.
3.3 The Developer will not be responsible for any delays, missed milestones (where specified in the Project) or additional expenses incurred due to the late delivery or non-delivery of the Client Content where required by the Developer for the Project.
4. Fees and Payment
4.1 The Client will pay the Project fees set out in the Project Specification (the “Fees”) to the Developer.
4.2 Notwithstanding any specific payment milestones set out in the Project Specification, the Fees shall by payable by the Client in the following instalments:
(a) 50% of the Fees to be paid no later than 15 days before commencement of the Project by the Developer;
(b) 50% of the Fees to be paid before the commencement of the ‘Build’ phase of the project; and
(c) the outstanding balance of the Fees to be paid no later than 10 days after the expiry of the Acceptance Test Period.
4.3 All Fees payable are exclusive of GST.
4.4 The Client shall make all payments due in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
4.5 Without prejudice to any other right or remedy that the Developer may have, if the Client fails to pay the Fees on the due date, the Developer may, at its option:
(a) claim interest at its discretion on any unpaid amounts;
(b) suspend the Project until payment has been made in full;
(c) where the Developer is providing Hosting Services, disable the Website until payment has been made in full; or
(d) terminate this Agreement immediately upon notice.
4.7 All invoices are sent to the Client via email to the Client’s specified email address. The Client will notify the Developer of any changes to the invoicing address.
4.8 The Developer will return the Deposit to the Client, if the project does not go ahead on account of the Developer.
5. Intellectual Property Rights
5.1 The Client grants to the Developer a non-exclusive, revocable, royalty-free licence to use and reproduce the Client Content solely for the purpose of performing its obligations under this Agreement.
5.2 The website (including all content and resulting code) will be fully transferred to the Client on completion of the project. The software and coding produced by the Developer in respect of the Website (excluding any Client Content) (the “Developer Materials”) may be reused by the Developer on a royalty-free and irrevocable basis.
5.3 The Client undertakes not to access, modify, alter all or part of the Developer Materials with a view to creating a separate website or licensing the Website to a third party or diminish the design and function of the Website, without the prior written consent of the Developer.
5.4 The Developer can register and renew domain names on behalf of and as requested by the Client. Fees and expenses incurred in registration and/or renewal will be included as part of the Fees. On payment of the Fees and delivery of the Project Release by the Client, the Developer undertakes to transfer all registration details for the Website, including but not limited to technical and administrative details, to the Client.
6.1 Each party warrants that it has full power and authority to enter into and perform this Agreement.
6.2 The Developer warrants that it will perform its obligations under this Agreement with reasonable skill, care and diligence and that the Client’s use of the Developer Materials will not infringe any third party intellectual property rights.
6.3 The Client warrants that it, or its licensors, is the owner of any intellectual property rights in the Client Content and that the Client has authority to use the Client Content in relation to the Website and that the Developer’s use of the Client Content in accordance with this Agreement will not infringe any third party intellectual property rights.
6.4 The Client confirms that to the best of their knowledge and belief that the Client Content does not contain anything which may reasonably be considered blasphemous, defamatory or obscene and do not breach any applicable law or regulation.
6.5 Save as expressly provided in this Agreement, all warranties, conditions, or other terms implied by statute, common law or otherwise are excluded.
7. Indemnities and Limitation of Liability
7.1 Nothing in this Agreement shall exclude or restrict the liability of either Party to the other Party for death or personal injury resulting from negligence or for liability for fraudulent misrepresentation or for any other liability which cannot be excluded by applicable law.
7.2 Subject to clause 7.1 and 7.4, neither Party shall be liable, whether in contract, tort (including negligence), statutory duty or otherwise, under or in connection with this Agreement for any loss of revenue, loss of actual or anticipated profits, loss of business, loss of operating time or loss of use, loss of opportunity, loss of reputation, loss of, damage to or corruption of data or any indirect or consequential loss or damage howsoever caused.
7.3 Notwithstanding clause 7.2 above, the Developer shall have no liability for any loss or damage caused to the Client due to:
(a) any network failure and/or inability on the part of the Client to access the Website due to a problem with the Internet and/or any telecommunications network;
(b) any viruses, worms, Trojan horses or other similar devices.
7.4 The Client shall indemnify and keep the Developer fully indemnified against any and all third party claims of infringement of intellectual property rights affecting the Client Content or the Hosting Services.
7.5 The aggregate liability of the Developer under this Agreement shall in no event exceed the Fees paid in the preceding twelve month period
7.6 Notwithstanding clause 7.5 above, the total aggregate liability of the Developer under this Agreement shall in no event exceed the fees paid under this Agreement.
7.7 The Client acknowledges that it is for the Client to ensure that the Website does not infringe the laws of any jurisdiction within which it is actively promoted.
8.1 If the Client is not taking services from the Developer, this Agreement will terminate automatically upon delivery of the Project Release to the Developer, unless otherwise extended by the Parties in writing. Otherwise, this Agreement shall continue unless or until terminated by either Party in accordance with the terms of this Agreement.
8.2 Notwithstanding clause 8.1 above, either Party may terminate the Agreement immediately in the event that the other Party:
(a) commits a material or persistent breach of its obligations under this Agreement which is incapable of remedy (and non-payment shall be deemed a material breach);
(b) fails to remedy a breach of any of its obligations under this Agreement, where it is capable of remedy, or persists in any breach of any of its obligations under this Agreement after having been required in writing to remedy or desist from such breach within a period of 30 days;
(c) makes or proposes any voluntary agreement or enters into a compromise for the benefit of its creditors;
(d) being a company, becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction);
(e) has a receiver appointed to administer any of its property or assets
(f) ceases or threatens to cease to carry on business; or
(g) has failed to meet expectations. In this case the client will pay the developer for all work completed at the hourly rate of the developer. The developer will then pass all material developed under the project to the client.
8.3 On the termination of the Agreement other than under clause 8.1 above, the Client undertakes to return promptly any test examples of the Website and any document, manuals or other printed materials which have been delivered to the Client by the Developer and to return or destroy any copies thereof (as requested by the Developer).
8.4 Any termination of the Agreement shall be without prejudice to any rights accrued in favour of either Party and will not affect those provisions of the Agreement which are by their construction intended to survive such termination.
9.1 Each Party undertakes that it shall not at any time during this Agreement, and for a period of 2 years after completion of the Project, disclose to any person any confidential information concerning the business, affairs, trade secrets, technical, commercial, financial, operational, marketing or promotional information or data of either Party or the terms of this Agreement, except as may be required by law, court order or any governmental or regulatory authority.
9.2 The provisions of clause 9.1 shall not apply to confidential information received by a Party which: (i) that party can prove was know before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of that party; or (ii) was received from a third party without obligations of confidence owned directly or indirectly to that Party.
9.3 Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under this Agreement.
10.1 Upon acceptance of the Website by the Client, the Client shall procure and maintain a hyperlink from the Website homepage to the Developer’s homepage in the form, “site developed by Eskay Malaysia Web Design” or similar agreed form.
10.2 Neither Party shall be permitted to refer to their working relationship or discuss the Project in any press or publicity, without first obtaining the approval of the other Party to the content of the disclosure.
11.1 Any notice given by either Party must be in writing and must be delivered personally or sent by prepaid first class post or facsimile transmission to the address or fax number provided by that Party.
11.2 Notices shall be treated as received, if delivered by hand, when delivered, if sent by first class post, 48 hours after posting and if sent by fax, when sent.
11.3 All other commercial communications relating to the Project between the Parties (other than stipulated notices under this Agreement) may be sent by email and will be deemed to have been received when sent.
12.1 Neither party may assign or otherwise transfer this Agreement or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
13. Force Majeure
13.1 Neither Party shall be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil disorder or industrial dispute. If such delay or failure continues for a period of at least 90 days, the Party not subject to the force majeure shall be entitled to terminate the Agreement by notice in writing to the other.
14. Joint Venture or Partnership
14.1 Nothing in the Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the Parties and neither Party shall have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party.
15.1 The Client undertakes for the duration of this Agreement and for a period of six months after its termination not to directly or indirectly solicit or induce any of the Developer’s employees to leave the employment of the Developer whether to work on a freelance or consultancy basis or to be directly employed by the Client.
16.1 Failure or delay by either Party to enforce any right or remedy under the Agreement shall not to be taken as or deemed to be a waiver of that right or remedy, unless the waiving party acknowledges the waiver in writing. Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
16.2 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction (or in any other jurisdiction) of any other provision of this Agreement.
16.3 No addition to or modification of any clause in the Agreement shall be binding on the Parties unless made by in writing and signed by both Parties.
16.4 This Agreement constitutes the entire agreement and understanding of the Parties in respect of the subject matter of this agreement and supersedes and extinguishes any prior agreements, undertakings, promises or conditions between the Parties relating to the subject matter. Each party acknowledges to the other that it has not been induced to enter into this Agreement nor has it relied upon any representation, promise, assurance, warranty or undertaking not contained in this Agreement.
16.5 A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any provision of this Agreement.
This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual claims or disputes) shall be interpreted construed and enforced in accordance with Malaysian law and shall be subject to the exclusive jurisdiction of the Malaysian Courts.