CLIENT AND DEVELOPER AGREEMENT
This Client and Developer Agreement (the “Agreement”) is effective on date of acceptance.
BETWEEN: (the “Client”), a company for which work is performed,
AND: COMOBI CONNECT PTY LTD (the “Developer”).
NOW, THEREFORE, it is mutually agreed as follows:
As used throughout this Agreement, the following shall have the meanings below unless otherwise indicated:
The term “Acceptance” shall have the meaning as defined in Section 5, hereto.
The term “Affiliate” of a named Party means a corporation, partnership, joint venture or other entity controlling, controlled by or under common control with such Party. For the purposes hereof, the term “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any such entity whether through the ownership of voting securities, by contract or otherwise.
The term “Agreement” means the terms and conditions, all attached Exhibits, and any other documents made a part of this Agreement or incorporated by reference, including any written amendments which have been signed by the Authorized Signatories of all parties.
The term “Approved Sub-developer” shall have the meaning as defined in Section 6.3, hereto.
The term “Authorized Signatory” means, with regard to Client and with regard to the Directors of COMOBI CONNECT PTY LTD.
The term “Developer” means COMOBI CONNECT PTY LTD, as well as its employees, directors, subsidiaries, Affiliates, successors and assigns, existing now and created in the future.
The term “Confidential Information” shall have the meaning as defined in Section 10 hereto.
The term “Developer Personnel” means any and all Developer employees, agents, and Sub-developers supplied by Developer to perform services for Client and in no event or for any purpose will these persons be considered employees of Client.
The term “Documentation” means all or any portion of the materials, in written or other tangible form (including on magnetic media), generated by Developer and Developer Personnel in the performance of the Work, including without limitation any Software summaries, Software design, architectures, program logic, flow charts, source code, program listings, functional or technical specifications, logical models, user guides, operator guides, installation and operation guides, and any other supporting or programming materials.
The term “Fixed Price Project” or “FP Project” is a Project in which Developer provides Work to Client for which payment is based on either specific deliverable Work Product or another basis as agreed by the Parties.
The term “Client” means its employees, directors, subsidiaries, Affiliates, successors and assigns, existing now or created in the future.
The term “Client Competitor” means any entity that is in the business, anywhere in the world and any affiliate of such entity, including, without limitation, their parents or affiliates, provided that COMOBI CONNECT PTY LTD and its affiliated companies shall not be considered Client Competitors.
The term “Client Technical Coordinator” means the Client employee assigned by Client pursuant to the applicable Statement of Work to oversee and coordinate Work to be performed.
The term “Party” in its singular or plural form, refers to either Client or Developer or both, as dictated by the use.
The term “Pre-Existing Developer IP” shall mean all intellectual property rights, including without limitation patents, copyrights and trade secret rights, and the tangible embodiments thereof, owned by Developer, the ownership of which by Developer either (A) pre-dates the date of the Statement of Work pursuant to which the relevant Work was performed, or (B) arises exclusively as a result of independent development by Developer and not as a result of the performance of this Agreement or of Developer’s exposure to any Client Confidential Information or other Client intellectual property.
The term “Project” means an effort in which Developer provides Work to Client resulting in deliverable Work Product as defined by a Statement of Work specific to the Project and which will be based on an agreed monthly price. The first deliverable Work Product for a Project may be the development of the SOW. The SOW may reference other documents for a complete specification of the Work Product.
The term “App Request Form” means Client’s standard form, on Developer Website, and any exhibits and attachments incorporated therein, which shall be used by Client to provide information for all Work to be performed by Developer and which has been properly signed by a Client procurement official authorized to execute such form.
The term “Software” means the instructions for a computer, whether in source code, object code, executable form, firmware or otherwise and whether tangible or intangible, together with all related Documentation, and the intangible interests in all of the foregoing.
The term “Statement of Work” (SOW) means a written document which is mutually acceptable by Developer and Client for a specific Project.
The term “Time & Materials (T&M) Project” means a Project in which Developer provides Work to Client.
The term “Term” means the period during which this Agreement is effective.
The term “Requirements Documents” means all App Request Forms and associated Statements of Work issued pursuant to this Agreement, and any other mutually agreed, written statements of the performance standards to which the Work must conform.
The term, “Software” means the tangible machine-readable or printed computer program(s) used in connection with the Work.
The term “Technical Coordinator” means the Client employee assigned to oversee and coordinate Work to be performed in connection with a given Developer Request or App Request Form, usually the Authorized Signatory.
The term “Work” means the remediation tasks, performance, reports, services, Documentation and other items to be provided under this Agreement and which will be furnished by Developer to Client, at Client’s request, pursuant to a App Request Form, including but not limited to all writings, inventions, improvements or discoveries, whether or not copyrightable or patentable, which are written, conceived, made or discovered by Developer and are in any way related to the performance of this Agreement.
The term “Work Product” means all items and information, whether tangible or intangible and in whatever form or media, including without limitation all Documentation, inventions, improvements or discoveries, whether or not copyrightable or patentable, which are written, created, conceived, made or discovered by Developer or any Developer Personnel as a result of the performance of this Agreement, together with all copyrights, patents, trade secret rights or other intellectual property rights in any of the foregoing.
The term “Source Code” includes all code written or developed by Developer that constitutes software.
- SCOPE OF AGREEMENT
- Scope of work
From time to time, Client may request and Developer may provide Developer Personnel to perform Work. This Agreement establishes the standard terms and conditions that will apply to such Work performed by Developer for Client.
- Change orders
Client may, by written change order, make any changes within the general scope of Work, including additions, deletions, or modifications to the Statement of Work or Work ordered, or in the specifications, or in the time and place of performance until all changes are approved by client and deemed ready for publishing to the relevant app stores. After the initial publish date to various publications/stores, including but not limited to, Play Store (Android) and App Store (IOS), changes will be charged, depending on its nature. Changes to this Agreement can only be made by Authorized Signatories of both Client and the Developer.
- ORDERING, PRICE, PAYMENT, SUSPENSION OF SERVICES & SUBSCRIPTIONS
For the full, satisfactory and timely performance of Work, and in accordance with the requirements of this Agreement, Client shall pay Developer for such Work as follows:
- Where Developer performs Work under a project,
- At such other amounts and in such other manner as to any specified Work as may be agreed by the Parties in writing.
- Payment of Invoices
Undisputed invoices shall be paid in South African Rand (ZAR) within 5 calendar days net after the later of: (A) receipt of a properly executed and otherwise prepared invoice in which Developer has certified that the Work that is the subject of the invoice has been completed or in the process thereof, or (B) Acceptance by Client of the Work that is the subject of the invoice by Client pursuant to.
Invoices that are not properly executed and otherwise prepared shall be returned to Developer for revision. Unpaid invoices shall grant developer with the right to suspend service until invoice is settled in full.
4.3 Suspension of service
Undisputed invoices will result in suspension of ALL services supplied by Developer to Client. This, therefore, means that, for example, an unpaid design invoice would lead to suspension of Hosting, Development, Marketing and any other services offered by Developer to Client, even if other invoices are paid in full.
All recurring services including, but not limited to, App Hosting, Web Hosting, Email Hosting, Cloud Storage & Monthly packages are required to be paid by means of a debit order. This Debit Order will commence once Developer has completed its work required by Client and deemed ready for publishing or commencement of service. Failure to pay monthly invoices by means of Debit Order will result in suspension of services, see Section 4.3.
Client may reject all or any portion of the Work within 14 calendar days after receipt of the Work or work in progress from Developer (the “Acceptance Period”) for noncompliance with the applicable specifications or other requirements of this Agreement and any applicable Statement of Work. Client may expressly accept the Work, in writing, and receipt of such written notice shall be deemed “Acceptance.” Failure of Client to accept or reject the Work within the applicable Acceptance Period shall also be deemed “Acceptance”. If any portion of the Work is rejected, Developer shall correct all nonconformities and redeliver the same to Client, but without any additional cost or expense to Client.
Should Developer either be unable to correct the nonconformities or should Client again reject the corrected version, then Client, at its sole option, shall be entitled to terminate the Statement Of Work, but not entitled to any refunds.
- Developer’S RESPONSIBILITIES
- Best efforts
Developer shall devote its best efforts, attention, knowledge and skill to the performance of this Agreement. Without modification of any obligation of Developer under this Agreement, Developer will provide day to day management and supervision of the Work, including without limitation determining in its reasonable discretion the time, scheduling, manner, method and place of performance of the Work.
- Use of employees
Developer shall use only its employees or employees of an Approved Sub-developer (“Developer Personnel” in the aggregate) to perform any Work under this Agreement. Notwithstanding the approval by Client to any such subcontracting, Developer shall in any event and at all times remain liable for performance of the Work by all Developer Personnel in conformity with the terms and conditions of this Agreement.
- Approval of Sub-developers
Developer may employ Sub-developer personnel on the Work without obtaining Client’s approval for the use of such Sub-developer.
- Conflict of Interest
During the term of this Agreement, the Developer has the right to enter into Agreements with a Client Competitor or any Affiliates of a Client Competitor, even when its required to perform the same or similar work as required under this Agreement under any agreement, contract or other arrangement that Developer may enter into with a Client Competitor or any Affiliates of a Client Competitor.
- Non-Disclosure Agreements
Developer shall, if requested by Client, have all Developer Personnel sign a non-disclosure agreement (NDA), in a form acceptable to Client prior to the start of Work. Developer Personnel who are performing Work as of the effective date of this Agreement must sign the NDA within 10 calendar days from the Effective Date of this Agreement.
6.6 Software and Server Maintenance
Software and server maintenance will be the sole responsibility of Developer. This is included as part of the monthly software subscriptions as well as the hosting fee charged on all once-off software purchases. This includes maintenance and updates to Developer CMS, which is, and shall remain the sole property of Developer, see Section 7.
- CLIENT PROPERTY
- Client Property
Any property, including but not limited to documentation, data or other technical or proprietary information, and other equipment or material of every description furnished to Developer by Client, is and shall remain the property of Client. Developer shall not substitute any property for Client’s property and shall not use such property except in performing Work as required by this Agreement.
Other than property provided by Client to Developer, and unless otherwise agreed in writing, any property including, but not limited to Software, Documentation, designs, reports, manuals, documents, patterns, specifications, data or other technical or proprietary information, and other equipment or material of every description furnished by Developer for Client in performance of this Agreement, is and shall remain the property of Developer. This excludes all once-off payment projects, giveaways & competition winners.
7.3 Content Management System (CMS)
The CMS is owned by Developer is, and shall always, remain the property of Developer. Access to Developer CMS is granted as part of monthly hosting fees payable by Client to Developer. If Client wishes to transfer software to another developer or company, it is the responsibility of Client and new company/developer to develop a new CMS to manage content for Software previously developed by Developer to Client. As stated in Section 7.2, Software not purchased as a once-off remains the property of Developer. Therefore, Software not part of once-off purchases are not allowed to be transferred, manipulated, changed or any action related to source code of Software developed by Developer to Client.
7.4 Source Code
The Source Code provided by Developer to Client will remain the property of Client. This is only applicable for once-off purchases and therefore not for monthly App Subscriptions. However, Source Code ownership is automatically transferred to Client after 18 months of monthly App & Website Subscriptions, and 24 months of App Subscription. Although Source Code belongs to Client, Developer is free to use previously developed Source Code on other clients projects, even Client Competitors.
- Intellectual Property Warranty and Indemnification
8.1.1.It remains the sole responsibility of the Client to ensure that the Work shall not infringe upon or violate any patent, copyright, trademark, trade secret or other intellectual property right of any third party.
- INTELLECTUAL PROPERTY RIGHTS
- Pre-existing Developer IP
The Client acknowledge and agree that the Work to be provided may incorporate Pre-Existing Developer IP. Developer hereby grants to Client a non-exclusive, worldwide, fully-paid up, irrevocable and perpetual license to use such Pre-Existing Developer IP (to the extent incorporated into the Work) as necessary or appropriate to Client’s enjoyment of its rights of ownership to, and use of, the Work, including but not limited to the rights to copy, distribute and sublicense such Pre-Existing Developer IP (to the extent incorporated in the Work) and to make derivative works therefrom, provided that Developer retains all ownership rights and title to the Pre-Existing Developer IP.
- Disclosure of Third Party Materials
Developer shall not be required to provide Client notice of the extent to which the Work Product will use, incorporate or be dependent upon third party intellectual property, including but not limited to patents, copyrights, or trade secrets.
- CONFIDENTIAL INFORMATION
In order that Developer may perform this Agreement, Client may disclose confidential and proprietary information pertaining to Client’s past, present and future activities, including without limitation, research, development, or business plans, operations or systems. It is further recognized that Developer will develop material and information that Client will wish to hold and to be held by Developer as confidential and proprietary information of Client.
As used in this Agreement, the term “Confidential Information” shall mean: (1) Work Product (including without limitation any notes, notations, and drafts, and regardless of whether such Work Product has been delivered to Client), (2) the terms, purpose, and subject matter of this Agreement, and any performance by either Party, (3) all information relating to Client’s technology, research and development, and business affairs, (4) financial and pricing data specific to this Agreement, and (5) such information that may be reasonably understood from legends, the nature of such information itself and/or the circumstances of such information’s disclosure, to be confidential and/or proprietary to the disclosing party or to third parties to which the disclosing party owes a duty of confidentiality.
- Marking of Work Product
It shall remain the Client’s responsibility to expressly state Work Product as Confidential Information upon its presentation, generation, replication or internal dissemination.
The restrictions of this on use and disclosure of Confidential Information shall not apply to information that:
- Was publicly known at the time of Discloser’s communication thereof to Recipient; Becomes publicly known through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient;
- Was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient, provided, however, that Developer uses reasonable efforts to promptly inform Client in writing to establish Developer’s prior possession, and provided further, however, that this exception shall not apply to Work which upon its generation by Developer constitutes Client Confidential Information
- Is developed by Recipient independently of and without reference to any of Discloser’s Confidential Information or other information that Discloser disclosed in confidence to any third party;
- Is rightfully obtained by Recipient from Client Personnel authorized to make such disclosure without restriction; or is identified by Discloser as no longer proprietary or confidential.
- Limitations on Use and Disclosure
Each Party receiving Confidential Information (the “Recipient”) agrees as to any such Confidential Information that may be disclosed to it by the other Party (the “Discloser”):
- To protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received to (1) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (2) to Developer Personnel and Approved Sub-developers,
- and its Affiliates, who have a need to know and to use Confidential Information for purposes of such performance and who have been advised of and agree to the obligations and restrictions on persons receiving such information as set forth in this Agreement, provided that Developer notifies Client in advance of the names of any Developer Personnel having access to Confidential Information under this Agreement.
- Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Discloser;
- To treat Confidential Information as strictly confidential and as trade secret information, by protecting such information in the same manner and subject to the same protection as Developer treats and protects its own respective proprietary information of like importance; To use such Confidential Information only for the purposes of this Agreement or as otherwise expressly permitted by this Agreement;
- Not to make copies of any such Confidential Information or any part thereof except for the purposes of this Agreement;
- To reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of Discloser or a third party) as are contained in or on the original or as the Discloser may otherwise reasonably request;
- To insure that all Developer Personnel having access to such Confidential Information terminating employment with or services for Developer are reminded prior to such termination of his/her nondisclosure obligations undertaken pursuant to this or other employee nondisclosure agreement;
- Not to modify, prepare derivative works from, decompile, disassemble, or reverse engineer any Confidential Information other than in furtherance of the Work; and Not to disclose in any manner (including but not limited to news releases, articles, brochures, advertisements, speeches or other information releases) without the prior written approval of Client, the terms, purpose, and subject matter of this Agreement, and any performance by either Party.
- No disclosure of Developer Confidential Information
It is understood that Developer shall not disclose to Client any Developer confidential information.
- SOFTWARE APPROVAL
Software approval through various external companies including, but not limited to, Apple (IOS) and Google (Android), to the various app stores are not controlled by Developer and therefore Developer shall not be held liable for any software rejections. Developer will however perform additional work if software is rejected. If, however, software remains rejected either upon publishing, updates or modifications, Client will not be entitled to a refund for work already completed. This includes all changes in policies, practices, requirements from any of the relevant app publication stores or platforms.
- FORCE MAJEURE
- Force majeure
If the performance of this Agreement, or of any obligation, is prevented, restricted or interfered with by reason of:
- Acts of God;
- Wars, revolution, civil commotion, acts of public enemies, blockage or embargo;
- Acts of the Government in its sovereign capacity;
- Labor difficulties, including, without limitation, strikes, slowdowns, picketing or boycotts; or
- Any other circumstances beyond the reasonable control and without the fault or negligence of the Party affected.
- or interference (and the other Party shall likewise be excused from performance of its obligations on a day to day basis to the extent such Party’s obligations are related to the performance so prevented, restricted or interfered with); provided, however, the Party so affected shall use its best efforts to avoid or remove such causes of non-performance and both Developer and Client shall proceed whenever such causes are removed or cease.
13. PAYMENT PROCESSING TERMS
- Detailed description of goods and/or services
Comobi Connect Pty Ltd is a business in the technology industry that primarily develop software.
- Delivery policy
Subject to availability and receipt of payment, requests will be processed within 15 days and delivery confirmed by way of digital product delivery.
- Export restriction
The offering on this website is available to South African clients only.
- Return and Refunds policy
The provision of goods and services by Comobi Connect Pty Ltd is subject to availability. In cases of unavailability, Comobi Connect Pty will refund the client in full within 30 days. Cancellation of orders by the client will attract a 0 % administration fee.
Comobi Connect Pty Ltd shall take all reasonable steps to protect the personal information of users. For the purpose of this clause, “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from:
- Payment options accepted
Payment may be made via Visa, MasterCard, Diners or American Express Cards or by bank transfer into the Comobi Connect Pty Ltd bank account, the details of which will be provided on request.
- Card acquiring and security
Card transactions will be acquired for Comobi Connect Pty Ltd via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. DPO PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.
- Customer details separate from card details
Customer details will be stored by Comobi Connect Pty separately from card details which are entered by the client on DPO PayGate’s secure site. For more detail on DPO PayGate refer to www.paygate.co.za.
- Merchant Outlet country and transaction currency
The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction currency is South African Rand (ZAR).
Comobi Connect Pty takes responsibility for all aspects relating to the transaction including sale of goods and services sold on this website, customer service and support, dispute resolution and delivery of goods.
- Country of domicile
This website is governed by the laws of South Africa and Comobi Connect Pty chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature: Office F7, Pro Equity Court, 1250 Pretorius Street, Pretoria, South Africa.
Comobi Connect Pty Ltd may, in its sole discretion, change this agreement or any part thereof at any time without notice.
- Company information
This website is run by a private company based in South Africa trading as Comobi Connect Pty Ltd and with registration number 2017/191620/07 and Directors: Werner Alexander Wessels; Peter Johan Wessels
- Comobi Connect Pty Ltd contact details
Company Physical Address: Office F7, Pro Equity Court, 1250 Pretorius Street, Pretoria, South Africa.
Email: firstname.lastname@example.org Telephone: +27836550785
The failure of either Party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights, or any course of conduct or dealing, shall not be construed as a waiver or relinquishment of any such rights or conditions at any future time and shall in no way affect the continuance in full force and effect of all the provisions of this Agreement.
Headings used in this Agreement are for convenience of reference only and shall not be construed as altering the meaning of this Agreement or any of its parts.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining terms shall not be affected. The Agreement shall be interpreted as if the illegal, invalid or unenforceable provision had not been included in it, and the invalid or unenforceable provision shall be replaced by a mutually acceptable provision which, being valid and enforceable, comes closest to the intention of the Developer and Client underlying the invalid or unenforceable provision.
- Third Party Beneficiaries
Any Client Affiliate, whether now existing or created at anytime in the future, shall be a third party beneficiary of this Agreement. No other party shall be considered a third party beneficiary of this Agreement.
- Relationship of Developer and Client
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between Developer and Client. Neither Party is by virtue of this Agreement authorized as an agent, employee or legal representative of the other. Except as specifically set forth herein, neither Party shall have power to control the activities and operations of the other. Neither Party shall have any power or authority to bind or commit the other.
- Entire Agreement
This Agreement constitutes the entire understanding of the Client, and supersedes all prior or contemporaneous written and oral agreements, representations or negotiations with respect to the subject matter hereof. This Agreement may not be modified or amended except in writing signed by the Developer and Client.