STANDARD TERMS AND CONDITIONS OF SALE
1. Introduction
Supplier provides and Customer accepts (as applicable) Hardware, Software, Third Party Software and Services, subject to these Terms. These Terms are effective from the date that the relevant Transaction Document is accepted by the Customer.
The Customer may elect to receive Hardware, Software, Third Party Software and Services under these Terms and/ or receive Hosting Services from the Supplier.
The Parties agree that the complete and exclusive statement of the agreement between the Parties relating to these Terms consists of:
(a) these Terms; (b) any Transaction Document, (c) the Affero General Public License (APGL) version 3 or later.
2. Definitions
2.1 In these Terms unless the context otherwise requires:
2.1.1. Supplier means WilldooIT
2.1.2. Customer means the Party identified in the executed Transaction Document
2.1.3. Terms means these terms and conditions and any schedule of these Terms including without limitation any Transaction Document.
2.1.4. Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability howsoever arising, whether present, unascertained, immediate, future or contingent, whether based in contract, civil, common law, tort or statute and whether involving a Party, third party or otherwise.
2.1.5. Clause means a clause of these Terms.
2.1.6. Confidential Information means each Party’s confidential information which is not in the public domain, other than by breach of these Terms and includes, without limitation:
2.1.6.1. confidential information relating to the design, specifications, source code and content of the Software;
2.1.6.2. information relating to the personnel, policies or business strategies of a Party;
2.1.6.3. any information or documentation which is identified or marked as being confidential;
2.1.6.4. any information which comes into a Party's possession pursuant to, or as a result of, or in the performance of, any Service related to these Terms;
2.1.6.5. all other Information belonging or relating to a Party, or any Related Entity of that Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Party receiving the information knows, or ought reasonably to be expected to know, is confidential to the first Party or any Related Entity of that first Party; and
2.1.6.6. information relating to these Terms.
2.1.6.7. or a Transaction Document including any information submitted or disclosed by either Party during negotiations, discussions and meetings relating to these Terms or a Transaction Document;
2.1.7. Consultant means any consultant, contractor or similar person under contract with the other Party during part or all of the term of these Terms.
2.1.8. Deliverables, if applicable means any deliverables described as such in a particular Transaction Document and required to be provided by Supplier to Customer through the provision of Software and/or Services. Deliverables may include, but are not limited to, Software, programs, program listings, programming tools, documentation, reports and drawings.
2.1.9. Employee means any employee of the other Party during part or all of the term of these Terms.
2.1.10. Force Majeure means an act, omission or circumstance over which a Party could not have reasonably exercised control, excluding any obligation to pay money.
2.1.11. Hardware, if applicable, means hardware supplied to Customer by Supplier from time to time.
2.1.12. Intellectual Property Owner means the party which owns the Intellectual Property Rights to certain Deliverables as specified in a Transaction Document. For the avoidance of doubt, the Supplier retains all Intellectual Property Rights in the relevant Software or Deliverables unless the Supplier has agreed otherwise in writing.
2.1.13. Intellectual Property Right means all intellectual or industrial property protectable by statute, at common law or in equity and includes all know how, inventions, patents, copyright, designs (whether or not registrable), trade secrets, circuit layout designs, circuit layout rights registered and unregistered trademarks, trade names, logos and get-up (and any copyright in such trademarks, trade names, logos and get-up) and confidential information and all other rights and interests of a like nature.
2.1.14. Interest Rate means the rate prescribed by Section 2 of the Penalty Interest Rates Act 1983 (Vic).
2.1.15. Library Code includes any computer program (source and object code versions), code, object, tool or module or part thereof, which in the opinion of Supplier, is discrete and forms part of Supplier’s development tool kit for future software development. If Software is not marked Customer Code or similar when delivered to Customer, then the code shall be deemed to be Library Code.
2.1.16. Party means a party to these Terms and its successors, trustees and permitted assigns.
2.1.17. Related Entity has the same meaning as “related entity” under the Corporations Act 2001 (Cth).
2.1.18. Services, if applicable, means services supplied to Customer by Supplier from time to time.
2.1.19. Software, if applicable, means the software specified in a Transaction Document developed for Customer by Supplier including, without limitation, any Library Code.
2.1.20. Sub-clause means a sub-clause of these Terms.
2.1.21. Third Party Software, if applicable, means third party software specified in a Transaction Document and supplied subject to an End User Licence Agreement.
2.1.22. Transaction Document means any document entered into between Supplier and Customer which is accepted by Supplier, under, in connection with, or pursuant to, which document sets out any Hardware and/or Software and/or Third Party Software and/or Services proposed to be provided by Supplier to Customer (including when relevant Hosting Services), and which document may include, without limitation, a Proposal, a Work Order Request, Product Quotation, Statement of Work, order form, change or variation order or any equivalent or similar document.
2.1.23. Items appearing in bold type in the Schedules to these Terms (if applicable) shall be interpreted as defined terms.
3. Interpretation
3.1. In the interpretation of these Terms unless the context otherwise requires:
3.1.1. Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
3.1.2. Words denoting the singular number shall include the plural number and vice versa.
3.1.3. Words denoting any gender shall include all other genders.
3.1.4. A reference to a statute or a regulation also refers to any statute or regulation amending or consolidating or re-enacting any such statute or regulation.
3.1.5. Money references are references to Australian currency.
3.1.6. Headings used in these Terms are for convenience and ease of reference only and are not part of these Terms and shall not be relevant or affect the meaning or interpretation of these Terms.
3.1.7. Every obligation, agreement, condition express or implied in these Terms and entered into by more than one party shall bind them jointly and each of them severally.
3.1.8. If any provision or part provision of these Terms is held invalid, unenforceable or illegal for any reason, then that provision or part will be severed from these Terms and the rest of these Terms shall be read as far as possible as if the severed provision or part had never existed.
3.1.9. In the event of conflict between these Terms and a Transaction Document, the Transaction Document will prevail.
4. Scope
4.1. A Transaction Document (or Transaction Documents) will describe whether Customer is obtaining Hardware and/or Software and/or Third-Party Software and/or Services from Supplier.
4.2. Supplier may, at its option and subject to availability, provide support Services for Hardware and/or Software and/or Third-Party Software (Support). The provision of Support shall be governed by any separate agreement(s) that set out any additional terms and conditions (including price) applicable to such Support and these Terms.
4.3. These Terms shall continue until replaced by another written Terms as amended by supplier from time to time. Written notice will be provided to the customer. Such notification shall not affect any current Transaction Documents.
4.4. Execution of any transaction document between the Supplier and Customer incorporates these terms and conditions. By signing a Transaction document, the Customer acknowledges that they are bound by these terms and conditions.
4.5. Each Party is responsible for the supervision, direction and control of its own personnel. Supplier makes every effort to honour Customer's specific requests regarding the assignment of Supplier personnel. However, Supplier reserves the sole right to determine the assignment of its personnel. Supplier personnel are not restricted or prevented from performing services for others that are similar to the Services provided to Customer.
5. Variations
5.1. No modification, variation or alteration of any Transaction Document, shall be valid except in writing and signed by each Party.
6. Access and back-up
6.1. Customer will ensure that Supplier and its personnel have full and safe access to Customer’s premises at all reasonable times for the purposes associated with these Terms. Customer will ensure that Supplier personnel are given such information, facilities, services and accessories as Supplier reasonably requires to enable it to comply with its obligations under these Terms.
6.2. Customer will provide on request a suitably qualified and informed representative, agent or employee, who shall be available on call during Supplier' normal business hours to advise Supplier on access, use of Customer’s resources and any other matter within Customer’s knowledge or control which may assist Supplier in complying with its obligations under these Terms. Customer's representative will have the authority to represent the Customer in all matters concerning the Transaction Document. All Transaction Document related communications will be addressed to the Customer representative. If Customer replaces its designated individual, it must promptly notify Supplier in writing of such replacement.
6.3. Unless Customer had elected a back-up service which will be subject to a Transaction Document, Customer is responsible for ensuring all Customer data is adequately backed up at all times.
6.4. Customer must have, at all times, a back-up and security system including any disaster recovery plans and redundancy systems with respect to its data.
7. Software and services
7.1. If Customer is obtaining Software, Deliverables and/or Services from Supplier, the succeeding provisions of this Clause 7 will apply, subject to any applicable terms of the APGL, but not otherwise.
7.2. Supplier may provide Services by the use of Supplier selected independent contractors or partners.
7.3. To the extent that any Software, Deliverables or any document, material, idea, data or other information constitutes an original item developed by Supplier in performing its obligations under a Transaction Document, title thereto and all Intellectual Property Rights therein shall be vested in Supplier.
7.4. Subject to Customer's payment of all fees to Supplier, and Customer's continuing compliance with its obligations under these Terms and the relevant Transaction Document(s), Supplier hereby grants to Customer a non-exclusive, personal, royalty-free license to use and reproduce for the Customer's own business purposes those items identified and described in the relevant Transaction Document. The Customer must ensure that each copy of such items, whether in whole or in part, bears a notice that Supplier owns the Intellectual Property Rights in the item.
7.5. To the extent that any document, material, idea, data or other information submitted or disclosed by Supplier to the Customer in performing its duties under a Transaction Document constitutes a pre-existing proprietary item of Supplier or a third party, title thereto and all Intellectual Property Rights therein belong to Supplier or such third party, as appropriate. The Customer's right to use those items is on the same terms as the license in Clause 7.4.
7.6. Further to Clause 7.3, Where the Supplier has agreed in writing, and it is specified in the Transaction Document that Customer is nominated as the Intellectual Property Owner of any Software or Deliverables and Customer has fully complied with these Terms, including Customer's payment of all fees to Supplier, Supplier assigns the Intellectual Property Rights in the relevant Software or Deliverables specified in the Transaction Document, save for the Library Code (if applicable, and, for the avoidance of doubt), to Customer. Customer agrees that Supplier may continue to freely use concepts and ideas embodied in the Software or Deliverables (but not the Software or Deliverables themselves), including but not limited to those that may relate to program structure or technique.
7.7. Customer shall not copy, alter, modify, reproduce, reverse assemble or reverse compile the Software in whole or part or permit another to do same without Supplier's prior written consent except as authorised by these Terms.
7.8. Supplier shall retain the Intellectual Property Rights in all Library Code used by Supplier in the Software.
7.9. Unless otherwise provided for in a Transaction Document, Supplier shall not be required to correct errors or defects in the Software or in any other respect support the Software.
7.10. Supplier shall supply Services with all due care and skill. Notwithstanding that Services are supplied with all due care and skill, it is possible that Software supplied may include errors.
7.11. Unless otherwise provided for in a Transaction Document, Supplier and its subcontractors make no other warranties express or implied, by operation of law or otherwise, concerning the Services, Deliverables or Software and any related modifications or documentation provided. Supplier disclaims any and all responsibility for loss of data or other unintended consequences of testing or using modified code. Any warranties made to Customer under these Terms extend solely to Customer. Subject to Sub-clause 13.4, the sole remedy for a breach by Supplier of this Clause 7 shall be for Supplier to re-supply the relevant Services or Software.
7.12. Customer warrants that any materials (including, but not limited to any software, documentation or source code) supplied to Supplier by Customer do not infringe the Intellectual Property Right of any person.
7.13. Customer shall fully indemnify and keep indemnified Supplier against any loss, costs, expenses, taxes, duties, charges, demands or liability whether direct or indirect arising out of a claim by a third party against Supplier alleging that the Software infringes any Intellectual Property Right of that third party.
8. Hardware and third-party software
8.1. If Customer is obtaining Hardware and/or Third-Party Software from Supplier, the succeeding provision of this Clause 8 will apply but not otherwise.
8.2. Supplier offers no warranty in relation to Hardware and Third-Party Software other than those warranties that cannot be excluded by law. The Parties each respectively acknowledge and agree that any warranties applicable to such Hardware and Third-Party Software are the relevant manufacturer’s or developer’s (each a Third Party) warranties (Third Party Warranties) and such Third-Party Warranties (if applicable) shall be provided directly by the Third Party to Customer.
9. Fees
9.1. Services are offered on a “time and materials” basis.
9.2. Customer shall pay Supplier the Fees within 14 days of invoice unless specified otherwise in the applicable Transaction Document.
9.3. Supplier may increase its Fees at any time upon thirty (30) days' notice to Customer for new Transaction Documents.
9.4. Subject to Clause 10, Fees are exclusive of all taxes, except where expressly stated to the contrary (including, without limitation, GST), duties, fees or other government levies or charges, which may be imposed on or in respect of the Hardware, Software, Third Party Software, Deliverables or the Services. Such taxes, duties, fees or other government charges shall to the extent permissible by law be paid by Customer to Supplier.
9.5. Customer shall pay Supplier interest at the Interest Rate on all overdue amounts from the due date until payment is made.
9.6. If any payment owing to Supplier is not made within seven (7) days of the due date, Supplier may, without further notice to Customer, suspend further Services or its remaining obligations to Customer under these Terms.
10. GST
10.1. In this clause the expressions Consideration and GST have the meanings given to those expressions in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
10.2. Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these Terms or a Transaction Document are exclusive of GST.
11. Confidential information
11.1. Each Party agrees to ensure that Confidential Information belonging to the other Party is kept confidential.
11.2. Each Party shall not directly or indirectly divulge or communicate or otherwise disclose Confidential Information belonging to the other Party, in whole or part to any third party and shall make no use of any of the Confidential Information belonging to the other Party without the express written consent of the other Party.
11.3. Each Party shall take all necessary precautions to prevent any disclosure of the Confidential Information belonging to each Party to unauthorised third parties and shall inform the other Party of any suspected or actual disclosure of the Confidential Information.
11.4. Each Party shall not remove or cause to be removed from the other Party’s, its clients’ or its business partners’ premises any Confidential Information without prior written consent from the other Party.
11.5. If Customer wishes to provide information to Supplier which is of a technical nature or involves research and development, the Parties may enter into a separate agreement specifying the requirements that both parties must follow.
11.6. Neither Party is required to keep confidential any information which is already in their possession, properly obtained from third parties, or which is not confidential.
11.7. Nothing in these Terms will prevent Supplier from using in any way it sees fit and disclosing to its other customers, clients and suppliers any generic knowledge, skills and expertise retained in the memories of its employees, and any programming tools, problem-solving methodologies and associated checklists, templates or forms developed in performance of the Services which may have general application in the fields of information technology and business management. It is however understood that the foregoing shall in no circumstances extend to use or disclosure of Confidential Information of the Customer.
12. Non-solicitation
12.1. The Parties respectively acknowledge that each Party invests substantial time and resources in training its employees and consultants. As a consequence, during part or all of the term of these Terms and for a period of 6 months after the date of the termination or expiry of these Terms, each Party will not directly or indirectly (including through an associated or subsidiary company or otherwise):
12.1.1. solicit or encourage any Employee (or any Related Entity of such Employee) who has had direct dealings through these Terms, to leave the employ of the other Party; or
12.1.2. solicit or encourage any Consultant (or any Related Entity of such Consultant) who has had direct dealings through these Terms, to contract directly or to cease work for the other Party.
13. Exclusions and limitation of liability
13.1. Subject to clauses 7.10, 7.11, 7.12 and 8, the maximum aggregate liability of Supplier for all proven losses, damages and Claims arising out of a Transaction Document, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts incurred by the Customer to Supplier under the relevant Transaction Document to which the Claim relates, in the 6 month period immediately before the notice of the Claim.
13.2. Subject to Sub-clauses 13.1 and 13.4, in no event is Supplier liable for any lost profits, lost savings, incidental damages, loss of data and any economic loss arising out of the loss of data or economic or consequential damages, however caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to these Terms or the failure or omission on the part of Supplier to comply with its obligations under these Terms, even if Supplier has been advised of the possibility of such damages. In addition, Supplier is not liable for any damages claimed by Customer based on any third-party claim, including, but not limited to, any claim in negligence. In no event is Supplier liable for any damages caused by Customer's failure to perform Customer's responsibilities.
13.3. Subject to Clauses 7.11, 8, this Clause and as permitted by law, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of these Terms or to these Terms generally, are excluded.
13.4. Where legislation implies in these Terms any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in these Terms. However, the liability of Supplier for any breach of such term shall be limited, at the option of Supplier, to any one or more of the following:
13.4.1. if the breach relates to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
13.4.2. if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
13.5. Customer warrants that it has not relied on any representation made by Supplier or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Supplier.
14. Termination
14.1. Supplier may terminate these Terms or any Transaction Document immediately by notice in writing if:
14.1.1. any payment due from Customer to Supplier pursuant to these Terms remains unpaid for a period of fourteen (14) days;
14.1.2. Customer breaches any Clause and such breach is not remedied within fourteen (14) days of written notice by Supplier; or
14.1.3. Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; Customer being a natural person, dies; or Customer ceases or threatens to cease conducting its business in the normal manner.
14.1.4. Customer may terminate a Transaction Document immediately by notice in writing to Supplier if Supplier commits a material breach of that Transaction Document (for reasons other than a Force Majeure) and does not remedy such material breach within a period of fourteen (14) days (or such longer period as Customer may authorise in writing) after receipt by Supplier of written notice from Customer specifying such material breach and requiring the material breach to be remedied.
14.2. If notice is given to Customer pursuant to Sub-clauses 14.1 or 16.1, Supplier may, in addition to terminating these Terms do any one or more of the following:
14.2.1. repossess the Hardware and or any copies of the Software, Deliverables and Third-Party Software in the possession, custody or control of Customer;
14.2.2. retain any moneys paid;
14.2.3. charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
14.2.4. be regarded as discharged from any further obligations under these Terms;
14.2.5. suspend all Services and Support provided to Customer and Customer's licences to any Software, Deliverables and Third-Party Software; or
14.2.6. pursue any additional or alternative remedies provided by law.
14.2.7. If a Transaction Document is terminated pursuant to these Terms, Customer agrees to pay Supplier for any applicable Hardware, Software, Deliverables, Third Party Software or Services provided up until the Transaction Document is terminated. Such payment may include any termination charges set forth in the Transaction Document and any other reasonable charges and costs Supplier has incurred in terminating subcontracts. All materials developed to the date of termination and paid for by Customer will be delivered to Customer in accordance with the Transaction Document.
14.2.8. Where the Customer provides notice of termination of Suppliers services, Customer forfeits the rights to continue to access WilldooIT’s Intellectual Property. For the avoidance of doubt, where the customer provides notice of termination of WilldooIT Hosting services, WilldooIT reserves the right to terminate any licensing of WilldooIT Library Code, including any vertical solution, (e.g. TIMMSanywhere) resulting in the customers loss of access to WilldooIT Library Code(s), including any vertical solution (e.g. TIMMSanywhere).
14.3. The customer may terminate this agreement by providing (90) days written notice to WilldooIT
14.4. Upon formal notice of termination WilldooIT will provide the Customer with a quotation for the termination of all services.
14.4.1. The Customer must arrange upfront payment of the quotation per 14.4 prior to WilldooIT actioning any services associated with the termination of services.
15. Survival
15.1. The provisions of these Terms that are capable of having effect after the expiration of these Terms shall remain in full force and effect following the expiration of these Terms.
16. Force Majeure
16.1. Neither Party shall be liable for any delay or failure to perform its obligations if such a failure or delay is due to a Force Majeure and the affected Party takes all reasonable steps to remedy or mitigate the effects of the Force Majeure. If a delay or failure by the Party affected by the Force Majeure exceeds thirty (30) consecutive days, either Party may immediately terminate the relevant and affected Transaction Document (and any related Transaction Documents) by written notice to the other Party.
17. Assignment, novation and sub-contracts
17.1. Supplier may sub-contract for the performance or part performance of these Terms.
17.2. These Terms shall not be dealt with in any way by Customer (whether by assignment, novation, sub-licensing or otherwise) without Supplier's written consent, save that Customer may assign its rights to use the Software to a Related Entity with the prior written consent of Supplier (which shall not be unreasonably withheld).
17.3. Neither Party is prohibited from entering into similar agreements with others or from developing and providing materials or services which are similar to the Services, Software, Hardware or Third-Party Software provided under a Transaction Document.
18. Waiver
18.1. No right of a Party under these Terms shall be deemed to be waived except by notice in writing signed by the relevant Party. Such a waiver by a Party shall not prejudice its rights in respect of any subsequent breach of these Terms by the other Party.
18.2. Any express statement of a right of a Party under these Terms is without prejudice to any other right of that Party expressly stated in these Terms or arising at law.
19. Dispute resolution
19.1. A Party claiming that a dispute has arisen must give written notice to the other Party specifying the nature of the dispute and the Parties must submit themselves to the dispute resolution procedure specified in this clause 19.
19.2. The Parties agree that if a dispute arises out of or relates to any part of these Terms, a Party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 18 except to seek urgent equitable or interlocutory relief.
19.3. The procedures in this clause 19 must be completed within 40 business days from the giving of notice referred to in this clause 19.1. After expiry of this time a Party may commence legal proceedings relating to the dispute.
19.4. When a dispute arises between the Parties in relation to any part of these Terms, then:
19.4.1. all amounts payable by the Customer to Supplier which are not in dispute must be paid;
19.4.2. if the Parties cannot resolve the dispute within 10 business days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each Party (jointly referred to in the remainder of this clause 18 as Chief Executive Officers) for resolution;
19.4.3. if the Chief Executive Officers cannot resolve the dispute within 10 business days after referral, then the Parties must in good faith explore the prospect of mediation;
19.4.4. should the dispute require mediation, the mediation will be conducted by a mediator mutually agreed by the Parties, or failing agreement, selected by the Institute of Arbitrators and Mediators Australia in accordance with its Mediation and Conciliation Rules; and
19.4.5. each Party must pay its own internal and legal costs in relation to complying with this clause 19. The mediator’s costs are to be shared equally between the Parties.
19.5. Nothing in this Clause 19 shall prevent a Party:
19.5.1. commencing proceedings after the mediation referred to in Sub-clause 19.4; or exercising any rights of termination available to a Party under these Terms.
20. Access to the software
20.1 Where the Customer provides notice of termination of Suppliers services, the Customer shall forfeit the right to continue to access WilldooIT’s Intellectual Property
20.2 All rights as described below depend on a customer having paid any and all invoices as and where due to the supplier.
20.3 These Terms and Conditions govern terms of Access to the software defined as follows:
20.3.1. Odoo is the supplier of the Odoo Community and Enterprise Code. Community is open source and covered by a LGPLv3 license. Odoo Enterprise source code is not open source and is covered by the Odoo Enterprise License see https://www.odoo.com/documentation/user/13.0/legal/licenses/licenses.html
20.3.2. Once a customer begins paying for an Odoo Enterprise license they have the right to view the enterprise code and to develop modules based on this code as per the terms of this license. This right remains in place for as long as the customer pays their license fees. It is prohibited to distribute the enterprise code to a third party who is not paying for a license.
20.3.3. Third Party Modules or Apps from the Odoo App store are covered under various license types, but in most cases once a customer purchases that app they will have access to the code for that app and are able to use it for their own purposes, but not distribute this code to another party for the use of that other party. (i.e.. Use but not distribute).
20.3.4. WilldooIT will provide customer’s code written for them. This code is requested or defined in a "Transaction Document" which may be an email, or formal document outlining the feature or function that the code will be written to achieve. By default, these features will be written for that customer only and will be stored in a code repository for that customer. The customer has the right to access the code for their own purposes (provided it is paid for) at any time they so wish. However, the code is by default owned by WilldooIT and licensed to the customer and should not be distributed.
20.3.5. In extension to (20.3.4) it is possible for the Customer to request that they own the code developed, this can be negotiated and outlined on the "Transaction Document" but is not the default scenario and is not assumed to be the case unless specified.
20.3.6. (20.3.4) and (20.3.5) assume the code written is an extension of, or to augment or be in addition to Odoo owned enterprise or community code. It is often the case that what is termed as "Library Code" owned by WilldooIT may be used, extended or referenced to complete the tasks as outlined in the "Transaction Document". This Library Code is and will always remain the property of WilldooIT but is provided to customers for their use only if they pay a license fee. Whilst license fees are paid to WilldooIT for access to this "Library Code", the customer will have access to it. (i.e. Use but not distribute).
20.3.7. In extension to (20.3.6) it is possible for the Customer to request that "no WilldooIT owned Library Code is used". This request may not be possible, at which time WilldooIT will advise the customer. If a customer requires a functionality that is available exclusively in the WilldooIT Library Code, it will not be possible to create it separately. In this case, the customer must utilise the existing functionality provided in the WilldooIT Library Code (available with a subscription fee).
20.3.8. All code written by WilldooIT for a customer will be assumed to be available to WilldooIT for use in their Library Code" if required. However, this will not be the case if the "Transaction Document" specifically forbids it, as may be the case if (20.3.5) or (20.3.7) is enacted but cannot be the case if (20.3.6) is enacted.
20.3.9. If at any time a customer chooses to leave WilldooIT's hosting service for a third party, provided Odoo licenses are paid, they will have access to Odoo enterprise code. The customer can also request code purchased as per statement (20.3.3) or written as per statements (20.3.4), (20.3.5) and (20.3.7). However, code written under the provisions of statement (20.3.6) which makes use of "Library Code" will be treated as such: the code written for the customer exclusively (ie. stored in their repository) but not the Library Code will be provided to the customer when they leave. However, this code will usually not be operable without the "Library Code". A "Library Code" release agreement may be negotiated, however WilldooIT is under no obligation to do so.
21. Hosting Services
21.1. Services – means the web-based hosting solutions provided by WilldooIT.
21.2. Third-party supplier – means the third-party owner of the Intellectual Property in the services from whom WilldooIT acquires services to enable WilldooIT to provide the Services to the Customer, for example https://cloud.google.com/terms
21.3. WilldooIT may suspend access to the Services for routine maintenance or upgrade:
21.3.1. As required by the Third-Party supplier, or
21.3.2. As necessary. Provided that, to the extent possible, WilldooIT will ensure that interruptions to the Services are kept to a minimum.
21.3.3. Where possible the customer will be contacted beforehand to co-ordinate planned outages.
21.4. The Customer ordered and WilldooIT agreed to supply to the Customer the Services subject to the terms and conditions of this Agreement.
21.5. WilldooIT undertakes to provide the Services in compliance with these Terms and Conditions.
21.6. Representations and Warranties – the Customer represents, warrants and covenants to WilldooIT that:
21.6.1. The Customer data or its use or the use by the Customer of the Services shall not violate, misappropriate or infringe any Intellectual Property rights of any personal or breach the privacy of any person or moral right arising under the Laws;
21.6.2. The Customer’s data and use of the Services will not contain any harmful components, including but not limited to, viruses, trap doors, hidden sequences, hot keys, harmful malware, SPAM - as defined in the SPAM Act 2003 (Cth) - or any such similar harmful applications;
21.6.3. the Customer has all rights, power and authority necessary to an Agreement with WilldooIT and use the Customer data and the Services;
21.6.4. The Customer will have, at all times, a back-up and security system including any disaster recovery plans and systems with respect to its data;
21.6.5. The Customer shall be solely liable to maintain its back up and security system including any disaster recovery plans and systems with respect to its data; and
21.6.6. the Customer will comply with all applicable Laws in relation to its business and the use of the Services.
21.7. The customer acknowledges and agrees that;
21.7.1. WilldooIT has no control over and accepts no responsibility or liability whatsoever in relation to the use by the Customer of the Services and any data and information provided to or produced by the Customer through the Services;
21.7.2. WilldooIT does not verify, authenticate or warrant for accuracy any data or information used by the Customer or the manner in which the Customer uses the Services;
21.7.3. Whilst WilldooIT will use reasonable endeavours to assist the Customer in relation to the implementation of the Services, the Services are provided as is and it is the responsibility and liability of the Customer to verify whether the use of the Services is appropriate for its business;
21.7.4. WilldooIT does not provide any warranty or representations of any kind, express or implied, with respect to the performance of the Services or the merchantability, fitness for a particular purpose of the Services;
21.7.5. WilldooIT does not warrant or represent that the Services will be uninterrupted, always accessible, free of harmful components, accurate or error- free; and
21.7.6. Unless the Customer elected daily back up as Additional Services pursuant to clause 6, WilldooIT does not provide any a back-up and security system including any disaster recovery plans and systems with respect to the Customer’s information, data and the use of the Services.
21.7.7. If the Customer elected back up as an Additional Services pursuant to clause 6, the following provisions shall apply; as above
21.8.7.1 the additional daily back-up service provided by WilldooIT is not a designated disaster recovery plan or redundancy system of the Customer’s system and information; and
21.8.7.2 if the Customer requires to have a disaster recovery plan and redundancy systems in place with respect to its data and information, the Customer must independently arrange and maintain, at its costs, such disaster recovery plans and redundancy systems with respect to its data and information.
21.7.8. The Customer uses the Services at its own risk.
21.7.9. Self Hosting
21.7.9.1. WilldooIT Library Code is not available outside the WilldooIT hosting environment.
21.7.9.2. For pre-existing arrangements, prior to 1st of July 2021, where the customer has chosen to self-host or use a different hosting provider, and WilldooIT has agreed to provide access to its Library Code, the Customer agrees to take all reasonable steps to protect WilldooIT’s Intellectual Property.
21.7.9.3. If the customer cancels its SSA agreement or fails to pay the monthly fees to access WilldooIT’s Funded modifications, WilldooIT will remove the Library Code (see 14.2.8) from the customer’s server. The customer must cooperate with WilldooIT and give WilldooIT required access to remove the Library Code.
21.7.9.4. Code written under the provisions of statement (20.3.6) which makes use of “Library Code” will be treated as described in point 20.3.9.
21.7.9.5. For the avoidance of doubt, any vertical solution provided by WillldooIT cannot self-host.
22. Governing law
22.1. These Terms shall be governed by and construed according to the law of the State of Victoria, Australia.
22.2. The parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria and Australia and any Courts hearing appeals from such Courts.
23. Notices
23.1. Notices under these Terms may be delivered by hand, by email, by mail or by facsimile to the addresses specified below.
23.2. Notices shall be deemed given in the case of:
23.2.1. hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
23.2.2. posting, three days after dispatch;
23.2.3. by email and facsimile, upon completion of transmission.
24. Entire agreement
24.1. These Terms constitute the entire agreement between the parties for the subject matter referred to in these Terms. Any prior arrangements, agreements, representations, communications or undertakings whether oral or written in relation to the subject matter referred to in these Terms are superseded.
24.2. These Terms are not to be construed as creating a joint venture, partnership or agency situation between the parties and neither party may represent such. Under no circumstances may any party obligate or bind the other party to any agreements, arrangements, contracts or understanding or represent that they have such authority.
25. Execution
The Supplier and Customer acknowledge and agree that these Terms and Conditions are deemed to be Executed as an Agreement on the date of the latest signature applied to the relevant transaction document signed by the customer.