‘Proitzen’ means Proitzen Pty Ltd in general and it refers to all the authorized people involved in the business “Customer” shall mean means the customer who is involved in the business process and obtaining any services from Proitzen.
“Services” shall mean all Services supplied by the Proitzen to the Customer and includes any software, web, mobile app solutions and/or cloud storage, SEO services, hosting services and database services, API interfaces and external interfaces.
“Price” shall mean the price payable for the Services as agreed between the Proitzen and the Customer for the obtained services by the customer from Proitzen Pty Ltd.
Any instructions received by the Proitzen from the Customer for the supply of Services and/or the Customer’s acceptance of Services supplied by the Proitzen shall constitute acceptance of the terms and conditions contained herein.
Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Proitzen.
The Customer shall give Proitzen not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number or business practice). The Customer shall be liable for any loss incurred by Proitzen as a result of the Customer’s failure to comply with this clause.
Services are supplied by Proitzen only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
The price is considered to be as one of the following:
- As indicated on invoices provided by the Proitzen to the Customer in respect of Services supplied; or
- Proitzen’s current price at the date of delivery of the services according to the current price list.
Proitzen reserves the right to change the price in the event of variation to Proitzen’s quotation.
Is it understood by the customer that in Proitzen’s sole discretion a deposit may be required.
The specific time for payment for the services will be stated in the invoice given to the customer. In the event of no time stated it is agreed that the payment will be cash on delivery following the date of the invoice.
Taxes and duties that may be applicable to will added to the final price of the service.
At the Proitzen’s sole discretion a deposit not exceeding 50% of the quoted price may be required for Mobile app development and associated work.
At the Proitzen’s sole discretion:
- payment for any work shall be due before delivery of the Services; or
- payment for approved Customers shall be made by instalments in accordance with the Proitzen’s payment schedule; or
- payment may be based on a performance partnership agreement and will be agreed upon by the two parties at the time the Customer engages the Proitzen to provide Services quoted.
Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
Payment will be made by
- cash, cheque, bank cheque, electronic funds transfer (EFT) or
- MasterCard or Visa credit cards (such credit card payments will attract a 2.5 percent surcharge) or
- by any other method as agreed to between the Customer and the Proitzen.
GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fee schedule set forth in the contract. Subject contract terms, you are responsible for paying for the service ordered for the entire License Term, whether or not the Service is actively used unless non-use is based on continuous unavailability of the Service. An authorized License Administrator may add services by executing an additional written Acceptance Form. Added services will be subject to the following: (i) added services will be coterminous with the pre-existing License Term (either Initial Term or renewal term); (ii) the license fee for the added services will be agreed upon between you and Proitzen and reflected in the written Acceptance Form; and (iii) services added in the middle of a billing month will be charged in full for that first billing month. All pricing terms are confidential, and you agree not to disclose them to any third party other than to your attorneys and advisors.
Without limitation, any breach of your payment obligations uncured within 30 days receipt of notice thereof or your unauthorized use of the Proitzen Technology or Service will be deemed a material breach of the Agreement. Proitzen, in its sole discretion, may terminate the Agreement, your password, account or use of the Service if you breach or otherwise fail to comply with the Agreement and such breach remains uncured for more than 30 days following your receipt of notice thereof. In addition, Proitzen may terminate a free account at any time in its sole discretion.
You may terminate the Agreement if Proitzen breaches or otherwise fails to comply with the Agreement and such breach remains uncured for more than 30 days following Proitzen’s receipt of notice thereof. In the event of such termination you will not be responsible for any fees payable following the effective date of such termination.
Delivery of Good & Services
Delivery of the Services is deemed to have taken place when:
- The delivery of the services will be said to be final once the customer has granted approval to publish the app to the appropriate online store.
- the Customer instructs the Proitzen to make live any Web service, cloud storage and email setup if agreed upon.
The failure of Proitzen to deliver shall not entitle either party to treat this contract as rejected.
Proitzen will not be liable for any loss or damage in the instance of delivering the service on the said time and date where it was due to unavoidable circumstances beyond the control of Proitzen.
All risk for the Services passes to the Customer on delivery.
All third-party software is provided at the Customer’s own risk and is not in any way warranted by the Proitzen.
The Customer accepts that domain names, hosting addresses and email addresses may expire and takes responsibility for the renewal of such names with the relevant service provider. The Proitzen takes no responsibility for the loss of such names and the Customer indemnifies the Proitzen against any action arising from the loss of, or failure on the part of the Customer to renew, such names.
The Customer accepts full responsibility for all costs associated with the recovery of lost domain names, hosting addresses or email addresses and accepts that the Proitzen is entitled to charge the Customer the current market rate for the recovery of these names if so engaged to do so by the Customer.
Where the Services provided to the Customer by the Contractor allow for the addition, deletion or alteration of content in any form once the Customer has taken delivery of the Services, the Customer takes full responsibility for such changes and indemnifies the Proitzen against any action whatsoever arising from such alterations.
The Customer warrants that all material supplied to the Proitzen to be used on the Customer’s solutions will:
- be true and correct in every particular; and
- not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
- not breach any advertising industry standards or guidelines; and
The Proitzen reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Customer that does comply with standards.
Proitzen alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Proitzen Limited, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. The Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Proitzen Limited or the Intellectual Property Rights owned by Proitzen. The Proitzen name, the Proitzen logo, and the product names associated with the Service are trademarks of Proitzen or third parties, and no right or license is granted to use them.
Retention of Title
The Proitzen and the Customer agree that ownership of the Services shall not pass until:
- the Customer has paid the Proitzen all amounts owing for the particular Services; and
- the Customer has met all other obligations due by the Customer to the Proitzen in respect of all contracts between the Proitzen and the Customer.
Receipt by the Proitzen of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until the Proitzen’s ownership or rights in respect of the Services shall continue.
Default & Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Proitzen from and against all costs and disbursements incurred by the Proitzen in pursuing the debt including legal costs on a solicitor and own Customer basis and the Proitzen’s collection agency costs.
Without prejudice to any other remedies the Proitzen may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Proitzen may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Proitzen will not be liable to the Customer for any loss or damage the Customer suffers because the Proitzen has exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
The Proitzen may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Customer. On giving such notice the Proitzen shall repay to the Customer any sums paid in respect of the Price. The Proitzen shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Customer cancels delivery of Services the Customer shall be liable for any loss incurred by the Proitzen (including, but not limited to, any loss of profits) up to the time of cancellation.
The Customer acknowledges that any delivery date stated by the Proitzen is an estimate only. The Proitzen shall not be liable for any loss or damages suffered by the Customer caused by the delay or postponement in delivering the Services.
Should the Proitzen seek instruction from the Customer in relation to the provision and/or delivery of the Services and such instruction is not forthcoming for a period of 90 days, resulting in the stalling of the project ordered by the Customer, delivery of the Services shall be deemed to have been completed and the Proitzen shall be entitled to full payment of all moneys owing to the Proitzen by the Customer.
The Customer shall inspect the Services on delivery and shall within fourteen (14) days of delivery, with time being of the essence, notify the Proitzen in writing of any alleged defect, shortage in quality, damage or failure to comply with the description or quote.
The Customer shall afford the Proitzen an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage.
Warranties and Guarantees
To the extent permitted by statute, no warranty is given by the Proitzen as to the quality or suitability of the Services for any purpose and any implied warranty, is expressly excluded.
The Proitzen shall not be responsible for any loss or damage to the Services, or caused by the Services, or any part thereof however arising.
The Proitzen provides no warranty as to the commercial performance or otherwise of the Services provided to the Customer.
Proitzen shall not be responsible for any 3rd party services provided to the Customer. This includes but is not limited to 3rd party hosting, domain names, email services and other 3rd party software which may be used to develop the software as per the scope required. No refund will be made once the service is acquired and paid by the Customer to the Proitzen.
The Customer acknowledges that the Proitzen may, from time to time, disclose certain confidential information and documentation of the Proitzen relating to the Services, their marketing, use maintenance and software, including technical specifications.
The Customer must use such confidential information solely for the purposes contemplated under any relevant sales contract and the Customer must not at any time disclose, whether directly or indirectly to any third party this confidential information.
These obligations on the part of the Customer do not apply to any information which is otherwise public knowledge within the public domain or which is required to be disclosed by law.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
Reproduction or duplicating Proitzen’s services is strictly prohibited and will not be tolerated.
In order to provide our customers with all our services we will occasionally send out mails to make the customers aware of any new services we offer in which they might be interested in.
The Proitzen shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Proitzen of these terms and conditions.
In the event of any breach of this contract by the Proitzen the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Services.
The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Proitzen.
The Proitzen may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
The Proitzen reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Proitzen notifies the Customer of such change.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party. The failure by the Proitzen to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Proitzen’s right to subsequently enforce that provision.