Taste Buddy
Terms of Service
1.
2.
Engagement
1.1. WorldWeb Group Pty Limited ACN 160 515 926 (‘Taste Buddy’) will perform the services set out in any agreed Proposal
and Specification Document and any other services requested by the Client which Taste Buddy agrees to provide
(‘Services’).
1.2. In the event that any of the terms of this Agreement are or shall become invalid, illegal or unenforceable, the remainder
shall survive unaffected.
Definitions
In this Agreement and associated documents, the following expressions have these meanings set against them:
2.1. Client - The company or individual so named within this agreement, on the web hosting order, hosting agreement or
support agreement including persons to whom the client has authorised access to the web hosting for the purposes of
configuration, testing or development or those persons authorised/requested to act on behalf of the client.
2.2. Company – Taste Buddy
2.3. Service Level Agreement - is an agreement that provides a formal process for hosting support both inside and outside
regular business hours
2.4. Website Solution - is the Client’s Website or Application
2.5. System Software - is the software required to run the Website and Managed Server
2.6. Server Equipment - is the equipment required to host Websites
2.7. Server Environment - is the data centre environment used to provide connectivity for all web servers
2.8. Managed Server Solution - a dedicated server for hosting of the Clients Websites
2.9. Web Hosting Server Configuration - is the configuration required services appropriate for running the current and future
corporate Website
2.10. DNS Migration Process - is process provisioning the Domain Name Services (DNS) for Website Domain Names that are
hosted within the Managed Server Solution
2.11. Data Transfer - is the total non-cumulative inbound traffic per server for all services hosted within the managed server
solution
2.12. Initial Term - means the period beginning on the date of this Agreement and ending at the beginning of the next Quarter
2.13. Storage Capacity - is the storage space per server
2.14. Technical Support - is the expertise in use of the System Software or Sever Environment maintenance that is provided by
the Company’s staff or agents
2.15. Support Ticket - is the support email lodged using the dedicated support email system set up to receive and process
support requests and resolutions
2.16. Support Request - is a formal request for support for technical issues related to website hosting, software, server issues,
network issues, domain name issues or any other issues which relate to the Managed Server Solution
2.17. Support Level - will determine support time based on support levels defined within the terms of the agreement
2.18. Support Time - is the time impact to carry out maintenance tasks
2.19. Quarter - means the periods beginning on:
2.19.1. 1 January and expiring on 31 March;
2.19.2. 1 April and expiring on 30 June;
2.19.3. 1 July and expiring on 30 September; and
2.19.4. 1 October and expiring on 31 December;
2.20. Maintenance Tasks - are the set of tasks whether Programmed, Non Programmed or Urgent Ad-Hoc support requests
that relate to the day to day running of the server and website solution including but not limited to Security Measures,
Backup Measures, Package Updating, any other tasks that relate to the integrity, reliability and operation of the
Website.
2.21. Fault Condition - a condition in which the expected operation of the Managed Server Solution or Website Solution fails
due to any faults arising within the approved design or configuration. A fault condition does not include requests by the
Client for functional enhancements nor modifications of the existing design to overcome limitations of the Website
Solution or Managed Server Solution.
2.22. Programmed Ad-Hoc Support - is the pre-booked support task requested by the Client and submitted using the ticketing
system. A Programmed Support task will be carried out at an agreed selected monthly time interval and is not a part of
maintaining the web hosting environment, so the time impact to carry out these tasks shall be billed at the agreed
hourly rate and be invoiced accordingly.
2.23. Non-Programmed Ad-Hoc Support - is the support task that is not pre-booked but requested by the Client and
submitted using the ticketing system. A Non-Programmed Support task may be requested on the day allocated to carry
out the Programmed Ad-Hoc Support. Such tasks are not a part of maintaining the web hosting environment, so the
time impact to carry out these tasks shall be billed at the agreed hourly rate and be invoiced accordingly.
2.24. Urgent/Priority Ad-Hoc Support - is the support task that is neither Programmed or Non-Programmed and requested by
the Client as Urgent or Priority using the ticketing system. An Urgent or Priority Support task may be requested on the
day allocated to carry out the Programmed Ad-Hoc Support. Such tasks are not a part of maintaining the web hosting
environment, so the time impact to carry out these tasks shall be billed at the agreed hourly rate and be invoiced
accordingly.
2.25. Up-Time - is the total percentage of hours each month not affected by down-time
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3.
4.
5.
6.
2.26. Down-Time - is the total duration each month for which the primary services are not operating at a reasonable level.
Down-time does not include periods for which the primary services are not operating as a result of scheduled outages or
outages which can reasonably be determined as resulting from the Clients actions
2.27. Scheduled outages - from time to time upgrades to hardware and or software may be required; such upgrades will be
performed outside of business hours. The client will be notified as far as practicable in advance of such upgrades.
Scheduled outages under normal conditions should not exceed 5 hours per year. Under normal conditions the client will
be advised via the dedicated support email system no less than 24 hours in advance of any scheduled outage.
Fees
3.1. The Client will pay the fees as set out in the Proposal or Specification Document.
3.2. The Client will pay for all work performed by Taste Buddy which is not specified in the Proposal or Specification
Document at the hourly rates specified in the Proposal or Specification Document.
3.3. The Client will pay all invoices within 14 days after the date of the relevant invoice.
3.4. If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by Taste Buddy, the Client
shall pay the undisputed amount claimed and shall notify Taste Buddy in writing (within 7 days of receipt of the invoice)
of the reasons for disputing the invoice. If the parties cannot come to an agreement in relation to the disputed amounts
within 14 days of notification in writing by the Client to Taste Buddy of the disputed amounts in accordance with this
subclause, the parties shall attempt to resolve the dispute via the dispute resolution procedure as set out herein. Where
there is a dispute the parties shall endeavour to arrive at a mutually agreeable resolution. Where this is not possible
then the parties will agree to engage an independent arbitrator from the Law Society Association to assist in this dispute
resolution process. Each party shall bear their own costs in relation to this arbitration process.
3.5. The Client will pay Taste Buddy interest on any non-disputed amount outstanding under this agreement. Interest will be
calculated daily at the rate of 10% per annum from the due date for payment. The Client will reimburse Taste Buddy for
any costs incurred by Taste Buddy in recovering any outstanding amounts.
3.6. If any undisputed amount remains outstanding under this agreement then Taste Buddy may provide written notice of
the amount outstanding and allow the Client 10 working days to settle the undisputed amount. Should the undisputed
amount remain outstanding after the 10 day notice period then Taste Buddy may suspend or cancel all further access to
services or systems provided to the client by Taste Buddy.
3.7. Where the setup component of the project extends for a period of three (3) months or more from the date of
commencement then Taste Buddy will require payment for the remaining setup fee, and will commence charges for the
monthly payments.
3.8. The amount payable for any taxable supply made under or in accordance with this agreement is exclusive of GST. The
amount payable for any taxable supply made under or in accordance with this agreement will be increased by the rate
of GST imposed by law.
3.9. Expenses, including travel and subsistence, and goods and services purchased on the Client’s behalf, are charged at cost.
For travel, Taste Buddy’s standard policies apply which are to use economy class within Australia and business class or
equivalent for overseas air travel.
3.10. Taste Buddy may increase base rates at any time by providing notice in writing. The increase will not exceed CPI in South
Australia plus 10% in any given calendar year.
Intellectual Property
4.1. In performing its obligations under this agreement, Taste Buddy will use and make available, and may create and make
available, to the Client certain intellectual property rights (‘IPR’). This includes the Software Platform (“Quanta
Platform”).
4.2. Any IPR provided or created by Taste Buddy is owned by Taste Buddy. Taste Buddy does not surrender or assign the IPR
to the Client.
4.3. Taste Buddy remains the owner or licensee of any Intellectual Property created or developed as a result of the provision
of Services to the Client ("Works").
4.4. Taste Buddy grants the Client a licence to use the IPR referred to in paragraphs 4.1 and 4.2 as is necessary for the
operation of the Web Site (‘the Licensed IPR’). The Licensed IPR may only be used to operate the Web Site.
4.5. The Client shall keep confidential any methodologies and technology used by Taste Buddy to carry out an engagement
and shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse
assemble or reverse compile the whole or any part of the IPR.
Client Equipment
5.1. The Client shall provide such assistance to Taste Buddy and such continued access to Client equipment and Facilities,
and must provide all necessary network connections (including internet), equipment, labour, and other materials as
Taste Buddy reasonably requires to provide the Services.
5.2. Taste Buddy will not be responsible for the operation, maintenance, safety or security of any Client equipment and
Facilities. Such equipment remains at the risk of the Client.
5.3. The Client is solely responsible for the transmission and reception of electronic communications by the Client's
equipment and Taste Buddy has no responsibility for such electronic signals. The Client must ensure that the Client
equipment is well maintained and does not damage or interfere with Taste Buddy 's equipment, Facilities or services.
Installation
6.1. The Client shall, at its own expense, comply with any directions or specifications issued by Taste Buddy to prepare the
Client Premises prior to Installation and shall provide Taste Buddy with full access to the Client Premises.
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6.2. If the Client delays Installation due to inadequate preparation of the Client Premises or access to the Client Premises,
the Client shall be liable to Taste Buddy for all reasonable costs and expenses incurred by Taste Buddy directly or
indirectly as a result of such delay.
6.3. The Client shall provide Taste Buddy with such assistance, including the provision of personnel and facilities as Taste
Buddy reasonably considers necessary to ensure satisfactory Installation.
6.4. Risk of loss or damage to any equipment used in the Installation passes to the Client upon delivery of such equipment to
the Client Premises.
6.5. Equipment and Facilities provided or installed at the Client Premises by Taste Buddy for use in connection with the
Services must not be used for any purpose other than that for which it was provided by Taste Buddy.
6.6. The Client, shall not without the prior written consent of Taste Buddy, allow any adjustments, modifications, alterations,
repairs or servicing to the equipment or Facilities provided by Taste Buddy to be carried out by persons other than
authorised Taste Buddy.
7. General Maintenance
7.1. The Client shall notify Taste Buddy in writing of any defect or suspected defect in the services provided by Taste Buddy.
Upon notification, Taste Buddy shall, to the extent necessary, inspect, replace or repair any defect in the services at no
charge and as soon as practicable after receiving notice from the Client.
7.2. Taste Buddy shall be entitled to charge, and the Client shall pay, an additional charge if the defect is the result of:
7.2.1. improper use or mismanagement by the Client;
7.2.2. operation of the Facilities, equipment or Services other than in accordance with instructions provided by Taste
Buddy;
7.2.3. use of Facilities, equipment or Services in a manner not reasonably contemplated by Taste Buddy;
7.2.4. modification of Facilities, equipment or Services not authorised by Taste Buddy;
7.2.5. use of Facilities, equipment or Services in a manner contrary to law;
7.2.6. subjection of any physical Facilities or equipment to unusual or unrecommended physical, environmental or
electrical stress;
7.2.7. reinstallation or moving of the Facilities or equipment by a person other than Taste Buddy;
7.2.8. use of the Services, equipment or Facilities by a person other than the Client;
7.2.9. Client's failure to comply with any term of this Agreement.
7.3. If the Client provides notice of a defect or suspected defect and any subsequent inspection by Taste Buddy reveals no
further obligation on Taste Buddy, the direct and indirect costs and expenses associated with such inspection shall be
borne by Client.
8. Use of services
8.1. Client undertakes not to:
8.1.1. use the Service for any illegal or improper purpose nor allow any other party to do so;
8.1.2. use the Service fraudulently or in connection with criminal activity; or
8.1.3. assign or transfer in any way any of its rights or obligations under this Agreement or any part thereof without the
prior written consent of Taste Buddy.
8.1.4. The Client acknowledges and agrees that if required by Taste Buddy, it will block or take other reasonable steps to
prevent access to or use of the Service by any unauthorised person.
8.1.5. The Client is solely responsible for all use of the Services, including all fees and charges in connection therewith,
notwithstanding that any use may have been fraudulent, illegal or not authorised by the Client, except where
Taste Buddy has knowledge of such fraudulent, illegal and/or unauthorised use and fails to inform the Client or
fails to seek to limit or prevent such use.
8.1.6. Nothing in clause 8.1.5 will be construed as imposing an obligation on Taste Buddy to monitor, detect and/or
report fraudulent, illegal or unauthorised use of the Services.
9. Representatives
9.1. The Client must appoint and notify to Taste Buddy in writing a representative to undertake and manage all the
responsibilities and obligations of the Client under this Agreement and all Contracts. ("Representative").
9.2. If the Representative is replaced or removed, the Client must notify Taste Buddy immediately of this replacement or
removal.
9.3. The Client will be liable for all acts and omissions of its Representative.
10. Customer Data
10.1. End users may use the Website Solution to create an account and purchase products and services. Where end users
create an account using Quanta Platform, they will sign up by creating a Quanta End User account.
10.2. End user account information will be retained in the database of the Quanta Platform and may be used by the merchant
for electronic direct marketing purposes and customer recognition at point of sale using the tools provided.
10.3. Taste Buddy may use the customer information pursuant to Quanta Platform end user terms and conditions which will
be displayed on the Website Solution and which are available for review at the following URL: http://www.Taste
Buddyms.com/home/quanta-end-user-terms-of-use/.
11. Warranty
11.1. Taste Buddy provides a warranty in respect of the Work for a period of sixty (60) days from completion of the Work.
11.2. Taste Buddy provides a warranty in respect of the Subsequent Work for a period of sixty (60) days from completion of
the Subsequent Work.
11.3. No warranty is provided for maintenance or support work, or for any other work conducted and charged for on the basis
of hourly rates.
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12. Indemnities
12.1. The Client warrants to Taste Buddy that it owns or is the authorised user of any IPR in the content of the Web Site or any
server for the Web Site (‘the Content IPR’); and indemnifies Taste Buddy against any claim that Taste Buddy has
infringed the IPR of any person by using or varying the Content IPR or the information contained on the Web Site or any
server for the Web Site.
12.2. The Client agrees to indemnify Taste Buddy and its employees against all liabilities, claims, costs or expenses incurred by
Taste Buddy in respect of any claim or action by a third party in connection with the provision of the Services.
13. Hosting and Email Services
13.1. Fair Use Policy
13.1.1. Downloading and/or uploading of more than 10GB of data each month on or from your website is excessive use.
13.1.2. Storing more than 5GB of data on the designated web space is excessive use.
13.1.3. Storing more than 2GB of email per user email account is excessive use.
13.1.4. Where the Client is in breach of this Fair Use Policy, Taste Buddy may contact the Client to discuss changing usage
so that it conforms to this Fair Use Policy.
13.1.5. If, after Taste Buddy has contacted the Client, the excessive use continues, Taste Buddy may, without further
notice:
13.1.5.1. charge You a rate of 0.02c per MB for continued Data Services usage; and/or
13.1.5.2. suspend or limit the service (or any feature of it) for any period Taste Buddy determines is reasonably
necessary.
13.2. During any period when Taste Buddy requires access to the Web Site, the Client will give Taste Buddy three business
days’ notice:
13.2.1. before supplying the Access Codes to any other person; and
13.2.2. of its intention to alter or to allow any other person to alter the Web Site.
13.3. The Client gives Taste Buddy permission to access, manage and renew domain names as necessary.
14. Backup
14.1. Taste Buddy is not required to make any backups of data unless requested by the Client. If requested to make any
backups, Taste Buddy does not guarantee that any data can be restored from backups and does not accept any
responsibility for any loss or damage of data.
15. System Updates
15.1. From time to time Taste Buddy may, in its sole discretion, update the Services with fixes, patches, maintenance releases
and workarounds (‘Update’) which shall be provided to the customer as they become available during the term of this
agreement. For the avoidance of doubt Updates do not include any Taste Buddy Services deemed by Taste Buddy to
contain significantly enhanced features / capabilities or any new services or products.
16. Limited Liability
16.1. Taste Buddy will not be liable to the Client in respect of any direct, indirect, special or consequential losses (including
but not limited to loss of profits or loss of revenue) however caused, and regardless of whether the Client has been
advised of the possibility of such loss, where such loss arises as a result of the breach of this Agreement other than as a
result of any negligence or a statutory liability arising in connection with the supply of Products or performance of
Services under this Agreement.
16.2. Except in relation to liability for personal injury (including sickness and death), and subject to 10.4, Taste Buddy will not
be liable to the Client in respect of any loss or damage which may be suffered or incurred or which may arise directly or
indirectly in respect of the use or effect of Products or Services supplied pursuant to this Agreement or in respect of a
failure or omission on the part of Taste Buddy to comply with its obligations under this Agreement.
16.3. The Client releases and indemnifies Taste Buddy, its servants and agents against all actions, claims and demands
(including the cost of defending or settling any action, claim or demand) which may be instituted against Taste Buddy
arising out of a breach of this Agreement by the Client or the fraud or negligence of the Client, its agents, employees or
subcontractors or of any other person for whose acts or omissions the Client is vicariously liable.
16.4. The Client releases and indemnifies Taste Buddy against any action, claim or demand by the Client’s End Users, servants,
employees or agents or their personal representatives or dependants arising out of the performance of this Agreement
other than as a result of any negligence or a statutory liability arising in connection with the supply of Products or
performance of Services under this Agreement.
16.5. The Client shall at all times indemnity and hold harmless Taste Buddy and its officers, employees and agents (“those
indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred
or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or
liability was caused by:
(a) a breach by the Client of its obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission of the Client.
17. Term
17.1. The term of this Agreement is the Initial Term.
17.2. Unless terminated pursuant to clause 13, the term of this Agreement will be automatically extended for one Quarter at
the end of the Initial Term and at the end of each subsequent Quarter.
18. Default and Termination
18.1. Either party may terminate this Agreement during the Initial Term by providing notice in writing to the other party that
it wishes to terminate this Agreement.
18.2. Either party may terminate this Agreement by providing at least:
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19.
20.
21.
22.
18.2.1. 30 days notice in writing prior to the expiry of the Initial Term; or
18.2.2. at least one clear Quarter’s notice.
18.3. If a party does not comply with a condition of this Agreement (‘the Defaulting Party’) the party entitled to the benefit of
that condition (‘the Innocent Party’) may give notice requiring that condition to be complied with within no less than:
18.3.1. seven days, if the notice is in respect of a breach of clause 3; and
18.3.2. 30 days, if the notice is in respect of a breach of any other clause.
18.4. If:
18.4.1. that condition is not complied with within the period stated in that notice; or
18.4.2. a party is insolvent within the meaning of the Corporations Act 2001 (Cth);
the Innocent Party may terminate this Agreement by notice to the Defaulting Party.
Confidentiality
19.1. Except where this agreement otherwise provides, Taste Buddy must keep confidential any information that has been
provided by the Client and that the Client has informed Taste Buddy in writing must be kept confidential (‘the
Confidential Information’).
19.2. Taste Buddy may use the Confidential Information only to the extent that the use is required:
19.2.1. for Taste Buddy to perform its duties under this agreement; or
19.2.2. by law or the rules of a stock exchange, government or government agency having jurisdiction over Taste Buddy.
19.3. Taste Buddy may wish to obtain publicity for work undertaken on behalf of its clients. Taste Buddy assumes the right to
use references in proposals or other similar submissions made to other prospective clients, unless the Client expressly
prohibits such disclosure, in writing, prior to commencement of the engagement. Taste Buddy shall be entitled to claim
authorship for any work for which it has been responsible.
Entire Agreement
20.1. This agreement and any invoices or executed proposals issued by Taste Buddy constitutes the entire agreement
between the parties for the subject matter of this agreement. Any prior arrangement, agreements, representations or
undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in
writing signed by each party.
Assignment
21.1. The rights and obligations of each party under this Agreement are personal and cannot be assigned, charged or
otherwise dealt with, without the prior written consent of all parties. Such consent must not to be unreasonably
withheld.
21.2. Taste Buddy may assign its rights and obligations under this Agreement to a company, whether or not this company has
been incorporated at the date of this Agreement, without the prior consent of the Client provided that written notice is
provided to the Client.
General
22.1. The Client agrees to be a reference account for Taste Buddy and permits Taste Buddy to use its name, executives and
products in press releases, advertising, and other marketing and promotional materials.
22.2. Time is of the essence in respect of obligations to pay money and the giving of notice to terminate this agreement.
22.3. This agreement is governed by the laws of South Australia and the Commonwealth of Australia. Any proceeding brought
in the Federal Court of Australia must be instituted in the South Australian District Registry.