Terms of Service Agreement
This SERVICE AGREEMENT ("Agreement") is entered into on ("Effective Date"), between Mogeneration Pty Ltd (ABN 33 133 111 609), whose registered office is at Level 1, 40 King St, Sydney NSW 2000 ("Mogeneration"), and COMPANYNAME ("Customer").
- Mogeneration has developed Oomph, the Mogeneration mobile publishing framework, which is a system enabling the creation of electronic publications (the "System"). The System consists of a number of Services.
- The Customer wishes to engage Mogeneration to provide the Services to use the Application and the Hosting Service on terms and conditions contained in this Agreement.
Item 1 – Fees
- Service Provided
- Oomph Standalone [live for 30 days, after 30 days your app will still be active on users' iPads but new downloads will not be possible] Self Service License: $749
- Oomph 12 Month [365 days] Self Service License: $8,239
Item 2 - Services
Hosting: Hosting of Oomph content on the Akamai or Edgecast high speed content distribution network (CDN). This includes up to 100 GB of data per month (this approximates into 1000 publications containing 100 megabytes each.)
If downloads exceed 100GB a month [the customer] will automatically migrate onto [Oomph Extra Hosting package] costing $399/month which provides up to 1000 GB of data per month. All excess downloads will be charged at $0.50 per GB.
Support: Online Technical and Design help desk support.
Training: Full access to the Oomph Online Learning HQ includes video tutorials, guides and templates.
Analytics: Reporting on the usage of the branded Oomph apps [via download] including number of users, session time and use of Oomph features.
iPad Template Creation: Access to iPad design templates. Templates are the look and feel of the publication and are used as the basis of actual pages in the publication.
Publisher Set up: Set up on Oomph platform.
SCHEDULE 1: CONTRACT TERMS & CONDITIONS
GRANT OF LICENCE
Subject to the compliance by the Customer with its obligations under this Agreement, Mogeneration grants a non-exclusive license to the Customer to use the Application and the software associated with the provision of the Services in accordance with the purpose for which Mogeneration publishes the digital Publication on the hosted Oomph server for the Term and the Further Term.
OWNERSHIP OF MOGENERATION INTELLECTUAL PROPERTY BY MOGENERATION
The parties acknowledge and agree that all Mogeneration Intellectual Property associated with the Services and the Applications and any copies thereof, including all updates, enhancements and modifications, is and remains the property of Mogeneration.
OWNERSHIP BY CUSTOMER
- The Publication including all Intellectual Property therein and including design rights, rights in the look and feel and lay out of the Publication as featured in the Customer's digital magazines, books or bodies of content, including any version or adaptation of the Publication created by Mogeneration, except for the Mogeneration Intellectual Property, will at all times remain owned by and be the sole property of the Customer.
- Mogeneration will not use, copy, adapt, transmit, publish, or display the Publication, except as permitted in this Agreement or as expressly authorised by the Customer in writing.
The Customer agrees to indemnify Mogeneration for any costs, losses, expenses or liabilities sustained or incurred by Mogeneration in connection with any claim by any third party for:
- breach of copyright;
- breach of privacy laws; or
- breach of any other laws,
arising directly or indirectly in relation to the Publication but provided such cost, loss expense or liability is not caused by a breach by Mogeneration of its obligation set out in clause 5(a).
PROVISION OF SERVICES
- Mogeneration agrees to provide the Services and the Hosting Service to the Customer and the Customer agrees to pay the Fees in respect of the Publication during the Term and the Further Term on the terms set forth in this Agreement.
- The Customer acknowledges and agrees that part or all of the Services may be provided by Mogeneration agents, affiliates, vendors, or subcontractors.
- Mogeneration agrees to supply to the Customer information on request regarding the nature, type and technical specification of the hardware and software that hosts or operates the Services.
- Mogeneration may suspend the provision of the Services at any time in the event that any of the Fees are not paid on their respective due dates. The Service will be reconnected within a reasonable period upon payment of all outstanding Fees in full. Such suspension shall not constitute a breach of this Agreement.
- Mogeneration require developer access to the relevant app store in order to provision the app. The Customer must provide this access at least 40 days before the agreed App release date.
FEES, PAYMENT AND DELIVERY
- The Customer will pay the Self Service Fee via paypal [in advance] for the Services on the terms set out in this Agreement.
- The Self Service Fees [please refer to item 1 of the schedule] are non-refundable from the date of payment and include licensing, hosting and online support. In paying the Self Service Fee, the customer agrees to adhere to the Apple store guidelines.
- By paying the Self Service Fee: the Customer commits to the term stated [in item 1]. The term commencing from the date of payment and to run over concurrent days. On cancellation, or failure to continue to pay the Self Service Fee the app will be removed form the App Store after 15 days.
- All monetary figures quoted in this Agreement are in Australian dollars exclusive of GST, for Australian Customers or United States dollars for Customers outside Australia.
- By payment of the Self Service Fee the Customer also will be supported via an Online Forum, and technical and design support via email/web only with a 48 hour response time. A Customer needs to upgrade to get account management, training packages or if faster turnaround than 48 hours is required.
- Customer Reporting is included in the basic app package that includes App Downloads, however for an additional upgrade Customers can receive an Advanced Analytics package for an extra $99/month.
- The Hosting Service level may change depending on the amount of data served in any given month as described in Item 2 of the Schedule. Hosting for self service includes downloads of up to 100GB/month. If data exceeds this the [customer] will be upgraded to Oomph Extra Hosting package and charged $399/month. This gives them 1000GB of download/month. If the [customer] exceed this--they will be charged $0.50GB.
MODIFICATIONS AND NEW RELEASES
- Mogeneration reserves the right to modify any of the Services from time to time as Mogeneration deems necessary to improve, enhance or continue the Services.
- From time to time Mogeneration may, in its sole discretion, update the Services such as fixes, patches, maintenance releases and workarounds ("Update") which shall be provided free of charge to the Customer as they become available during the Term and the Further Term providing that the Customer has paid all Fees in full. If the Customer receives an Update, the terms of this Agreement will apply to both the original release of the Services and the Update. For the avoidance of doubt, the Updates do not include any Mogeneration Services deemed by Mogeneration to contain new services or products.
Termination will occur if:
- either party is in breach of this Agreement and, where that breach is capable of being remedied, the breach is not remedied within 30 days of written notice requiring that breach to be remedied; or
- either party suffers an Insolvency Event.
- the customer fails to adhere to the [Apple store guidelines][asg].
Notwithstanding any other provision of this Agreement, if by reason of fire, climatic conditions, strikes, lock outs, wars, acts of God, industrial dispute, Government regulation or prohibition or in any other circumstance beyond a party's control that party is affected in the performance of any obligation under this Agreement, that party will not be liable under this Agreement to the other party for not performing, or for the manner of its performance of, such obligation to the extent to which, and for the period of time during which, that party is so affected.
LIMITATION OF LIABILITY
- Save in the event of a breach by Mogeneration of its obligations under this Agreement and subject to the ACL, in no event shall Mogeneration be liable to the Customer for, negligence, strict liability or other obligation for any special or indirect or consequential damages (including, without limitation to the extent permissible by law, loss of anticipated profits, business interruption, loss or inaccuracy of information) arising out of the use of or inability to use the services or the other party had been advised of the possibility of such damages.
- Save in the event of a breach by Mogeneration of its obligations under this Agreement and subject to the ACL, Mogeneration's liability shall be limited to the reprovision of the Services where possible or where that is not possible to the refund of any Fees paid for any period during which the Services are unavailable/inoperative.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
- The parties agree that Mogeneration will grant a non-exclusive license to the Customer to use the Mogeneration Intellectual Property associated with the provision of the Services or the Applications in accordance with the purpose for which Mogeneration produces such software on the terms and conditions of this Agreement.
- The Customer acknowledges and agrees that nothing contained in this Agreement passes the ownership of the Mogeneration Intellectual Property to the Customer and that the Mogeneration Intellectual Property will remain the property of Mogeneration.
- Each party agrees to continually use reasonable efforts to protect the other party's intellectual property used in the Services or otherwise and to cooperate with the other party at their cost in its efforts to protect such rights.
- Each party agrees to promptly notify the other of any known or suspected infringement or breach of any intellectual property used in the Services or otherwise that comes to their attention.
- Mogeneration shall have the exclusive right to institute infringement or other appropriate legal action against alleged prospective or actual infringers of any Mogeneration Intellectual Property used in the Services or otherwise, and shall incur all expenses in connection with any such legal action and shall retain all money received from such action.
If the Services or the operation of the Services become or, in Mogeneration's opinion are likely to become, the subject of a claim that it infringes the rights of any third party, Mogeneration shall, at Mogeneration's expense either:
- procure the right for the Customer to continue using the Services; or
- replace and modify the Services so that it becomes non-infringing;
provided, however, if neither of the foregoing alternatives is reasonable in the reasonable opinion either party, the Customer will cease use of the Services whereupon this Agreement shall terminate immediately without prejudice to any accrued right.
- The parties have imparted and may from time to time impart to each other certain Confidential Information and the parties may otherwise obtain Confidential Information concerning the business and affairs of the other pursuant to this Agreement, including information marked or identified by the disclosing party as confidential or information which may be reasonably regarded as the Confidential Information of the disclosing party.
- Each party agrees that it will treat all such information as confidential and shall use such Confidential Information solely for the purposes of this Agreement.
- Each party and its designees shall not disclose, publish, release, transfer or otherwise make available such Confidential Information, whether directly or indirectly to any third party without the non-disclosing party's consent.
- Each party shall, on the termination of this Agreement, either deliver to the other party all Confidential Information in its possession, custody or control, or provide confirmation to the other party that such information has been destroyed.
- This clause will survive termination of this Agreement.
MARKETING, PUBLICITY AND BRANDING
- The Customer agrees to Oomph placing a single full screen advert in the Application, which is to be placed on the second to last page, unless the Customer commits to Oomph extra hosting services, for which Oomph agrees to remove such branding activities for all impacted editions.
- The Customer agrees to receive communications material from Mogeneration including information about new Oomph functionality, relevant market insights and case studies.
Any notice required or permitted to be delivered hereunder shall be in writing and shall be deemed to have been effectively given:
- immediately upon personal delivery or delivery by fax (providing that a confirming copy is sent by first class pre-paid post to the other party within 24 hours after transmission);
- two days after deposit with a commercial overnight courier with tracking capabilities, or
- five days after being sent by first class pre-paid post or registered or certified mail, to the respective addresses of the parties set forth above.
All transmissions shall be marked for the attention of the General Manager, Operations & I.T.
Neither party shall, without the prior written consent of the other party, which consent shall not be unreasonably withheld, assign its rights, title and interest pursuant to this Agreement or any amounts payable pursuant to this Agreement to a third party.
Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed as a waiver of either party's rights under this Agreement nor in any way effect the validity of the whole or any part of this Agreement nor prejudice either party's rights to take subsequent action.
This Agreement, together with the documents attached hereto sets forth the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any other agreement relating to the Services. No alterations, modifications or additions to this Agreement shall be valid unless made in writing and signed by a duly authorised representative of each party.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the Australian courts.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum￼extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
AGENCY OR PARTNERSHIP
This Agreement shall not be deemed to create any partnership, joint venture, agency or contract of employment between the parties. Each party represents and undertakes that it is entering into the Agreement as principal and not as agent for any other party. In performance of the Agreement, the status of each party including its employees and agents shall be that of independent contractor and not of employee, agent or fiduciary of the other party. Neither party has any right to make any commitments for or on behalf of the other party.
Clauses 4, 5, 7 (in so far as it relates to the payment of any unpaid Fees) and 12 survive the termination of this Agreement.
Each Party agrees that this Agreement is entered into between them and will be performed by each of them in good faith and a spirit of mutual co-operation, trust and confidence and that it will use all means reasonably available to it to give effect to the objectives of this Agreement and to ensure compliance with its obligations.
Mogeneration warrants that:
- each of the personnel performing the obligations of Mogeneration will be properly qualified and have appropriate levels of skill and training, having regard to the tasks that they will be performing;
- all Services performed by or for Mogeneration under this Agreement will be carried out with due care, skill and diligence;
- the Deliverables and Mogeneration's performance of the Services will comply with all applicable.
SCHEDULE 2: CONTRACT DEFINITIONS
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth);
Application means the Publication reader which is developed based on Mogeneration's Oomph reader.
Confidential Information means all information and documentation of a party, (whether verbal or recorded on paper or by electronic means), whether disclosed to or accessed by the other party in connection with this Agreement, including:
- all information of a party that is not permitted to be disclosed to third parties under local laws or regulations;
- information relating to a party's customers, employees, technology, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, research, development, business affairs and finances, ideas, concepts, innovations, inventions, designs, business methodologies, improvements, trade secrets, copyrightable subject matter, patents and other intellectual property and proprietary information;
- the terms of this Agreement;
- the Intellectual Property;
- Mogeneration Intellectual Property; and
- any information developed by a party by reference to the other party's information,
but Confidential Information shall not include information that:
- is independently developed by the receiving party without violating the disclosing party's proprietary rights, as shown by the receiving party's written records;
- is or becomes publicly known (other than through unauthorised disclosure);
- is disclosed by a party to a third party free of any obligation of confidentiality; or
- is already known by the receiving party at the time of disclosure, as shown by such party's written records, and such party has no obligation of confidentiality other than pursuant to this Agreement or any confidentiality agreements entered into before the date of this Agreement.
Download means the delivery of the Publication from the Hosting Service to the Application.
Hosting Service means the hosting and managing of the Publication on a Mogeneration designated server enabling the members of the public to access the Publication.
Insolvency Event means a party:
- stops or threatens to stop or suspends payment of all or a class of its debts;
- is insolvent or goes into liquidation or is presumed by a court to be insolvent;
- has an administrator appointed over all or any of its assets or undertaking or any step preliminary to the appointment of an administrator is taken;
- has a receiver, receiver and manager, controller, managing controller or similar officer appointed to all or any of its assets or undertaking; or
- has an application or order made, proceedings commenced, a resolution passed or proposed in a notice of meeting, an application made to a court or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up or dissolution or for it to enter an arrangement, compromise or composition with or an assignment for the benefit of its creditors or any of them.
Intellectual Property means all copyright, know how, designs (whether or not registered), trademarks, patents, and trade secrets, methodology, copyright in designs and specifications for software, artwork, the right to have confidential information kept confidential; and any application or right to apply for registration of any intellectual property and any modifications or enhancements thereto but does not include Mogeneration Intellectual Property.
Mogeneration Intellectual Property means all intellectual property developed by Mogeneration prior to the date of this Agreement, copyright in any software, code in any Mogeneration application, website, know how designs (whether or not registered), trademarks, patents, and trade secrets, methodology, copyright in designs and specifications for software, artwork, copy and other work produced by Mogeneration in the course of supplying the Services or development of any Application, copyright in any other material (including but not limited to any instructions and whether in written or electronic form), source code, anonymous user application usage, the right to have confidential information kept confidential; and any application or right to apply for registration of any intellectual property and any modifications or enhancements thereto.
Oomph means the Mogeneration mobile publishing framework which encompasses the Mogeneration products such as Oomph reader, the Oomph server and the supporting tools and processes for publishing content to such Oomph reader and server.
Publication means the Customer's magazine(s), books(s) or bodies of work(s) in digital form and any other publication as agreed between the parties in writing after the date hereof.
Self Service Fees means the fees payable by the Customer to Mogeneration for the provision of the Services and the Hosting Service, as listed in Item 1 of the Schedule.
Self Service Term means the period during which the Customer has paid the Self Service Fee.
Services means services described in Item 2 of the Schedule.
Service Levels means the service levels defined in Item 2 of the Schedule. Undue Service Interruption means an unplanned outage of the Hosting Service.