TO THE POINT TECHNOLOGY APPLICATION & SOFTWARE DEVELOPMENT TERMS & CONDITIONS AND SERVICE AGREEMENT
Terms and Conditions - Software Design & Development
THESE ARE THE STANDARD TERMS AND CONDITIONS REFERRED TO IN THE FOREGOING CONTRACT BETWEEN TO THE POINT TECHNOLOGY AND ALL CLIENTS. UNLESS AGREED OTHERWISE, THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL TO THE POINT TECHNOLOGY SOFTWARE DESIGN, AND APPLICATION DEVELOPMENT.
1. STANDARD TERMS AND CONDITIONS
This Software & Application Design Agreement (this “Agreement”) is entered into by and between To The Point Technology.com, a liability company ("To The Point Technology") and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of To The Point Technology’s Web Design services (the ”Existing” or “New Development”), and represents the entire agreement between you (the “Client”) and To The Point Technology concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Software Development Service Agreement which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein
2. PAYABLE SOFTWARE DEVELOPMENT FEES
If an agreed payment schedule is not in place, a non refundable deposit of 50% of the total quoted invoices amount payable under the contract is due immediately upon the signing of the software development contract. The remaining 50% shall become due on completion of the project to the reasonable satisfaction of the Client but subject to the terms of Clause 4.3 Approval of Work and Clause 4.4 Rejected Work hereof To The Point Technology reserves the right not to initiate the development process until the said deposit has been paid in full. All Android application project fees quoted in the contract does not include the cost of submitting the application to Google Play. The fee of $25 charged must be paid before the App can be uploaded under (the Client’s) Google Play developer account.
3.1 Third Parties - To The Point Technology will take no responsibility for services provided by third parties through us or otherwise, including the modules of the client's software project, unless recommended by To The Point Technology, although To The Point Technology will endeavour to ensure that the software efficiency is optimum.
3.2 Maintenance & Errors - To The Point Technology takes no responsibility for the functionality updates or maintenance upgrades (unless a software maintenance contract is in place) of the Android application or software program after the project has been completed. Errors (both technical and typographical) attributable to, To The Point Technology will be corrected free of charge, but To The Point Technology reserves the right to charge a reasonable fee for correction of errors for which To The Point Technology is not responsible, including, but not limited to malicious modification of the Android app or software package by a third party and typographical errors contained in materials provided to, To The Point Technology by the Client.
3.3 Extent of Work - Installation on the Internet is limited to the uploading of all necessary files to a host location, and testing of functionality. No registration of the developed software will be submitted to any entity unless otherwise agreed with the Client.
3.4 Consequential Loss - Under no circumstances will To The Point Technology be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of the Android application or software project. Client’s should ensure that data is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of Application or software package failure.
3.5 Duration & Status - Proposals and quotation offers are valid for a period of one month from the date issued, unless agreed otherwise. To The Point Technology is not bound to honor any offers that have expired or after the thirty day. Offers are not legally binding until an acceptable schedule and process for the project has been agreed on by both parties. This process and schedule must be agreed on within the month that the offer is valid. If an acceptable development process has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3.6 Search System Listings - To The Point Technology does not guarantee listings on search engine systems and the Client accepts that it is Google Play search engine system and not To The Point Technology who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank based on user feedback on the different search engines and that a new application or program may never even appear on some search engines at all. To The Point Technology does not control search engine system algorithms and major positioning changes can appear daily, weekly and even hourly.
4. COMPLETION OF WORK AND PAYMENT
4.1 Completion of Work - To The Point Technology warrants completing the development project in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. To The Point Technology will not charge more than the amount previously agreed unless the Client has changed the specifications or development scope of the project since the agreement. To The Point Technology will not undertake changes to the specifications of the project which would increase the cost, without prior written authorization from the Client.
4.2 Content & Materials – Client will supply all materials, content and instructions required for To The Point Technology to complete the development project in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, modules and other program with similar functionality. Where the Client's failure to supply such materials, content and instructions leading to a delay in completion of the project, To The Point Technology has the right to extend previously agreed deadlines for the completion of the project by a reasonable amount. Where the Client's failure to supply materials or content prevents progress on the project for more than 21 days, To The Point Technology has the right to invoice the Client for any part or parts of the project already completed.
4.3 Project Approval - On completion of the Software project, the Client will be notified and have the opportunity to review it. The Client should notify To The Point Technology, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any aspect of the software project which has not been reported in writing to, To The Point Technology as unsatisfactory within the 7 days review period will be deemed to have been approved by the Client. Once approved, or deemed approved, software projects cannot subsequently be rejected, and the contract will be deemed to have been completed and the balancing payment under Clause 2.1 Fee Payable will become due and the Contract will remain in effect until all obligations have been completed in terms of this Clause.(final payment)
4.4 Rejected Project - If a Client rejects the developed software project within the 7 days review period, or will not approve subsequent project performed by To The Point Technology to remedy any points reported by the Client as unsatisfactory, and To The Point Technology considers that the Client is unreasonable in his repeated rejection of the software project, the contract will be deemed to have expired and To The Point Technology can take any legal measures to recover both payment for the completed software project and reasonable expenses incurred in recovering payment
4.5 Payment - Unless otherwise agreed, upon completion of 7 days review period, To The Point Technology will invoice the Client for the 50% balancing payment in accordance with Clause 2.1 Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid by the Client within 3 days of the date that the invoice was issued.
4.6 Remedies for Overdue Payment - If payment has not been received by the due date, To The Point Technology has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 30 days after the due date, To The Point Technology has the right to replace, modify or revoke the Client's software license of the software project until full payment has been received. By revoking the Client's license to the project or removing the software from the Internet, To The Point Technology does not remove the Client's obligation to pay any outstanding monies owing.
5. INTELLECTUAL PROPERTY
5.1 Proposals - Offers and proposals made by To The Point Technology to potential clients should be treated as trade secrets and remain the property of To The Point Technology. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from To The Point Technology. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
5.2 Ownership to Intellectual Property - The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registrations entities, company logos, software, names and trademarks or any other material it supplies to, To The Point Technology for inclusion on the application of in the software package. The conclusion of a contract between To The Point Technology and the Client shall be regarded as a guarantee by the Client to, To The Point Technology that all such permissions and authorities have been obtained and that the inclusion of such material on the application or in the software package would not constitute a criminal offence or civil neglect. By agreeing to these terms and conditions, the Client removes the legal responsibility of To The Point Technology and indemnifies the same from any claims or legal actions however related to the content of the Client's application or software package
5.3 Software & Application Name - Any application of software name obtained during production will belong to the Client. The Client agrees to indemnify To The Point Technology, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the Title or name sought of submitted is not a trademark of a third party..
5.4 Licensing and Ownership - Once To The Point Technology has received full payment of all outstanding invoices and the software project has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be granted a license to use the software; or granted ownership of the developed application and its contents. To The Point Technology assumes all content supplied by the client is free of copyright, and To The Point Technology takes no responsibility whatsoever for using copyrighted material during production or in the software package that has been supplied by the client.
5.5 Trade Secrets - Any code that is not freely accessible to third parties and not in the public domain, and to which To The Point Technology or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from To The Point Technology. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which To The Point Technology or their suppliers owns the copyright. To The Point Technology acknowledges the intellectual property rights of the Client. Information passed in written form to To The Point Technology, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
6. RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate - To The Point Technology reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their intent or process, or any material is illegal, immoral or otherwise unacceptable.
6.2 Beyond the Control of To The Point Technology - To The Point Technology will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, act of God, or natural events such as fire or other events beyond the control of To The Point Technology.
6.3 Supply and Pricing of Services - To The Point Technology reserves the right to use whoever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
7.1 Jurisdiction - This Agreement shall be governed by the laws of Canada, Ontario which shall claim venue and jurisdiction for any legal action or claim arising from the contract between To The Point Technology and the Client. The said contract is void where prohibited by law.
7.2 Survival of Contract - Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable by law.
7.3 Change of Terms and Conditions - These terms & conditions may change from time to time. The Client will be informed of revisions as and when they are issued.