Legal

Software development and license agreement

1. Definitions ‍

1. “Scope of Work” refers to the features and functionalities of the Customised Software as detailed in Schedule 1.
2. “Intellectual Property Rights” refers to all intellectual property rights owned by XRii, including but not limited to:‍
   1. All text, graphics, user interfaces, photographs, trademarks (whether registered or common law trademarks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction, logos, and artwork, including but not limited to the design, structure, selection, coordination, expression,“look and feel” and arrangement of such content, contained on or in our Services;
   2. Any intellectual property rights in the Software, Customised Software and any related software, interface and documentation;
   3. All rights in respect of an invention, improvements, discovery, trade secret, secret process, know-how, concept, idea, information, process, data, formula or work product; and
   4. Software, Customised Software, code, documents and all products and services developed in whole or in part by XRii.
3. “GitHub Repository” refers to the online version control repository where the Software source code is stored.
4. “User Acceptance Testing (UAT) ” refers to the testing process performed by XRii and the Client to confirm the Software meets the criteria set forth in Schedule 1.
5. “Bug” refers to any defect that causes the Software not to function in accordance with the Scope of Work.
6. “Change” refers to a modification or enhancement that is outside the initial Scope of Work
7. “Change Register” refers to any request to modify or enhance the Software that is outside the initial Scope of Work.
8. “Ready to Deploy” refers to the Software meeting all features and functionalities outlined in the Scope of Work in Schedule 1, demonstrated during the User Acceptance Testing (UAT) period, and with no outstanding Critical Bugs.
9. “Commencement Date” is the date on which XRii begins the Software development.
10. “Excessive” refers to Bugs that exceed a reasonable number, to be determined at XRii’s discretion, and which do not materially affect the Software’s main functionalities or are not in clear violation of the Scope of Work outlined in Schedule 1.

2. Scope of work

1. The Customised Software and its features and functionalities described in Schedule 1 are an integral part of this Agreement and form the Scope of Work required by the Client.
2. XRii agrees to commence and complete the development of the Scope of Work in accordance with the agreed timelines.
3. The Parties agree that the timelines are estimates, which may vary depending on the progress of the Scope of Work required by the client.

3. Customised software license

1. XRii grants the Client, for its sole use, a worldwide, limited, non-exclusive, non-transferable, non-sub-licensable revocable licence to access and use the Customised Software. The Client acknowledges and agrees that XRii will only publish the Customised Software where the Client has provided XRii with its:
   1. Logo or graphics for the Customised Software;
   2. Colour scheme to suit the Client’s brand; and
   3. Agreement to accept sole responsibility for the customisation of the Software.

4. Development process

1. Prior to initiating the project, XRii and the Client collaborated to outline the Customised Software’s features and functionalities, which have been documented in the Scope of Work.
2. XRii will commence work on the Customised Software on the Commencement Date.
3. XRii will prioritise and complete tasks based on the Scope of Work outlined in Schedule 1. The Scope of Work will be communicated to the Client for transparency.
4. XRii commits to keeping the Client informed about the progress of the Customised Software.

4. Development testing

1. XRii will perform internal validation checks for each segment of the work, as detailed in the Scope of Work, to ensure they meet the specifications provided.
2. Notwithstanding the results of any User Acceptance Testing (UAT), the Client acknowledges that XRii cannot guarantee that the Customised Software will be free from Bugs once it is uploaded or installed on the relevant software platform or platforms for which it is being developed or downloaded by an end user.

6. UAT and bug resolution

1. XRii will notify the Client via email that the Customised Software is ready for User Acceptance Testing (UAT), signaling the initiation of the UAT period.
2. The Client shall identify and list all Bugs inconsistent with the Scope of Work, and report these to XRii.
3. XRii agrees to resolve all reported Bugs that fall within the project’s Scope of Work and notify the Client upon completion.
4. Upon satisfactory resolution of all Bugs and fulfilment of being Ready to Deploy, XRii will notify the Client via email of the completion of the Customised Software, marking the end of the User Acceptance Testing (UAT) period.
5. XRii reserves the right to consider the Customised Software as being Ready to Deploy during the User Acceptance Testing (UAT) process if there are outstanding Bugs that are excessive or deviate from the Scope of Work. This decision will occur when XRii emails the Client stating that the Customised Software aligns with the Scope of Work. Should such a condition arise, it will be adequately justified and communicated to the Client.

7. Change register

1. Any Change must be submitted in writing by the Client in the Change Register.
2. Upon receipt of a Change in the Change Register, XRii will evaluate its impact on the existing project Scope of Work, schedule, and budget. XRii will make every effort to incorporate a Change without altering the original project’s Scope of Work. However, a formal variation to the project will be necessary for any major Change.
3. XRii will provide the Client with a detailed estimate outlining the additional cost and time required to implement the Change as per the Change Request.
4. Written agreement from both Parties will be required to proceed with any major alterations to the project’s Scope of Work via a formal variation. A minor Change that doesn’t significantly impact the project may be implemented at the discretion of XRii, provided they are documented and communicated to the Client.

8. Cost and duration

1. The total cost and expected timeline of the Customised Software development are detailed in Schedule 1 of the Scope of Work.
2. The Client is responsible for fulfilling all payment obligations outlined in Schedule 2.

c. Payment schedule

1. The Client agrees to pay the required amounts according to the payment schedule specified in Schedule 2 of this Agreement. The payments are non-refundable and must be paid before each milestone, as detailed in Schedule 2.
2. XRii will issue invoices in accordance with the terms laid out in Schedule 2. The Client is responsible for making payment within the specified number of days after receiving each invoice.
3. Unless otherwise stated in Schedule 2, all payments are exclusive of any taxes, levies, or charges imposed by any governmental authority.
4. In the event that any invoice becomes overdue, XRii reserves the right to suspend all ongoing work until the overdue amount is paid in full.
5. All hosting, infrastructure and any other costs required for the Customised Software are built into the payment schedule specified in Schedule 2 of this Agreement.
6. In the event that the estimated timeframe in the Scope of Work is overdue by more than two (2) weeks and none of the exceptions outlined in the Termination Clause apply, the Client may defer the subsequent milestone payment(s) without penalty for an additional two (2) weeks.
7. In the event that XRii anticipates a delay in the Scope of Work, XRii agrees to notify the Client at least one (1) week prior to the original estimated delivery date. This notification will include the reasons for the delay and a revised estimated delivery date.
8. Provided that the notification is made in accordance with the above stipulation, XRii shall not incur any penalties for the delay.

9. Early completion

1. If the Customised Software is completed earlier than the estimated completion date, XRii will email the Client stating that the Scope of Work has been completed.
2. In the event that XRii completes the project ahead of the scheduled timeline, the Client remains obligated to pay the full amount as originally agreed upon in the contract.

10. Use of customised software

1. To the extent that the Client uploads, publishes or transmits any data, content or other material through the Client’s use of the Customised Software, the Client represents and warrants to XRii that the Client owns all rights in, or have authorisation for, or are otherwise legally entitled to upload, transmit or use such material. The Client indemnifies and holds harmless XRii, its affiliates, agents, principals, contractors or employees for any loss, liability, cost or expense arising from or in connection with any breach of copyright or any other claim that results from the Client’s publication or use of such material. The Client acknowledges and agrees that it takes full responsibility for any marketing or promotional activities where XRii is indemnified and held harmless in the event that the marketing or promotional activities are found to be unsuccessful upon the outcome of any results.
2. The Client agrees that it will not, either alone or through any other party:
   1. Make any copies of any of XRii’s IP.
   2. Use the Customised Software to transmit or upload any computer viruses, worms, trojan horses or other malware or to trespass or burden any network capacity.
   3. Distribute, sub-licence, disclose, market, or offer remote computing or hosting services, or transfer of the Customised Software to any party, or permit any person or entity to have access to the Customised Software by any sharing, remote computing or hosting services or time-sharing arrangement.
   4. Circumvent, disable, or otherwise interfere with security-related features of the Customised Software or features that determine whether the Client is acting in accordance with these Terms.
   5. Use the Customised Software in a way that impairs its functionality or reliability.
   6. Use the Customised Software to publish or disseminate content that may be found to be defamatory or illegal;
   7. Use the Customised Services to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party.
   8. Remove, obscure, deface or alter any of XRii or any third party’s copyright notices, trademarks or other proprietary rights affixed to the Customised Software or any XRii’s IP.
   9. Copy, decompile, modify, reverse engineer, disassemble, attempt to derive the source code of, decrypt or modify the Customised Software or any XRii’s IP or any of their components except as expressly permitted by these Terms, or in writing by XRii.
   10. Adapt, reproduce, store, distribute, display, publish or create derivative works from any part of the Customised Software or any XRii IP without XRii’s express written permission
3. The Client agrees that XRii may, in its absolute discretion, limit the Client’s access to or use of the Customised Software if, in its opinion, the Client’s use of the Customised Software is excessive or unreasonable, impacts the usability or reliability of the Customised Software for XRii or other users, or breaches these Terms.
4. XRii may require that the Client remove or delete any content uploaded onto the Customised Software or the Client’s account within 1 business days’ written notice to it.
5. The Client agrees to use the Customised Software in compliance with all applicable laws of the countries in which it or its customers reside, access or use the Customised Software.

11. Client obligations

1. The Client agrees to provide XRii with all necessary cooperation, information, and materials required for XRii’s performance of the Customised Software.
2. The Client agrees to abide by all regulations and guidelines related to the Customised Software’s intended use and operation.

12. XRii obligations

1. XRii agrees to deliver the Customised Software in accordance with the Scope of Work.
2. XRii shall maintain confidentiality of the Client’s Personal Information acquired in the course of performing the Customised Software.

13. Mutual obligations

1. Both Parties agree to work cooperatively and take reasonable steps to ensure smooth completion of the project.

14. Security policy of data

1. The Client acknowledges that it has read, understood and agrees to the Privacy and Security Policies as provided in this agreement, which outlines the Parties obligations in relation to privacy, security, use and storage of data.
2. Access to the Customised Software may require a unique access code, token, user-name and/or password (Security Credentials). The Client must not release, distribute, publish or otherwise make public any Security Credentials provided to the Client in relation to the Customised Software to any person.
3. The Client agrees that it is responsible for maintaining the security of any account, login and Security Credentials, and that it will keep such information confidential. The Client must immediately notify XRii of any actual or suspected unauthorised use of the Client’s account details or any other breach of security.
4. If the Client provides Security Credentials to facilitate access to the Customised Software (or to the Client’s data stored thereon) to any third party, it does so at its own risk. The Client must ensure that any such party accepts and complies with these Terms and it agrees to remain fully liable to XRii for the acts, omissions and negligence of that third party.
5. XRii reserves the right to suspend or terminate the Services or any account relating to the Customised Software for any reason, including where it believes there has been a breach of security in relation to an account.

15. Use and storage of data

1. The Client agrees that XRii may collect, maintain, process and use diagnostic, technical, usage and related information in relation to the Client’s use of the Customised Software to provide and improve XRii’s products and services, facilitate product support and verify compliance with these Terms.
2. The Client agrees that XRii may provide its partners and third-party providers data relevant to that party’s software or services provided that the data is provided in a form that does not personally identify it.
3. The Client agrees that any information it uploads, records, creates or is otherwise stored in the Customised Software is stored by the Client at its own risk. The Customised Software is not a data storage or backup service. While XRii makes every effort to prevent data loss, it does not warrant that its computers or services will be free from failures, corruption, security intrusion or interference. To the maximum extent permitted by law, XRii shall have no liability to the Client for such corruption or loss of data. The Client agrees that it is its responsibility to regularly back up the Client’s data.
4. If the Client facilitates or permits access by any other party to the Client’s data on the Customised Software the Client are solely responsible for the actions of that party. XRii shall not be liable for any addition, modification or deletion of the Client’s information or data resulting from such access by any third party.

16. Third-party information and services

1. The Customised Software may access, or contain links to, websites or services controlled by third parties. XRii does not guarantee the availability, accuracy, completeness, reliability, or timeliness of such websites or services, nor its stock information, location data or any other data displayed or located thereon. The Client agrees and acknowledges that XRii is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third-party materials or websites. The Client agrees that such actions are its own responsibility.
2. The Client agrees that XRii, its affiliates, agents, principals, contractors or employees shall have no liability to the Client for content that may be found to be offensive, indecent, objectionable or illegal either on the Customised Software or any third-party website or software.

17. Confidentiality

1. Neither party shall disclose or use for any purpose other than to fulfill obligations under this Agreement, any Confidential Information belonging to the other party, without first obtaining written consent from that party.
2. Should a party be legally obligated to reveal the other party’s Confidential Information, it will not be considered a breach of this Agreement.
3. Both parties are responsible for ensuring that their respective employees, contractors, or agents who are involved in this project do not disclose or make public any Confidential Information.
4. In the event of a known or suspected breach of confidentiality, immediate notification must be provided to the impacted party.
5. Either party may disclose the terms of this Agreement (excluding Confidential Information) to its subsidiaries, legal advisors, financial auditors, insurers, and accountants.
6. The Client acknowledges that XRii may concurrently work on Customised Software development projects, or Software projects for other clients. While doing so, XRii agrees not to disclose any of the Client’s Confidential Information to these other clients.
7. The obligations set forth in this Confidentiality section shall continue in effect for a period of two (2) years following the termination of this Agreement or completion of the Customised Software, whichever comes later.

18. Warranties

1. XRii commits to correcting any defects in the Customised Software for a period of two (2) months following the date when the final Customised Software have been submitted to the Client for User Acceptance Testing (UAT).
2. To the fullest extent permissible under applicable law, XRii disclaims all warranties, both express and implied, in connection with the provision of the Customised Software under this Agreement, except for those expressly provided herein.
3. Nothing in this Agreement shall exclude or limit any warranties, implied warranties, or conditions that cannot be lawfully excluded or limited. Should XRii be deemed liable for any breach of such statutory warranties or conditions, the liability of XRii shall be limited to the maximum extent permitted by law.
4. XRii shall not be liable for any indirect, consequential, or incidental damages, including but not limited to loss of profits, revenue, or data, arising out of or in connection with any defects, bugs, or legal issues related to the Customised Software.
5. The Client warrants and represents to XRii that it:
   1. Is the party specified as the Client in Schedule 1.
   2. Genuinely offers the Business Services.
   3. Has and will maintain throughout the term of this Agreement, any and all qualifications, certifications, licences, permits, insurances and any other documentation necessary to provide the relevant Business Services to customers and members of the public in accordance with any relevant laws and that it will notify XRii of any change to such details.

19. Termination

1. The Agreement can be terminated by either Party after giving seven (7) days notice.
2. If XRii ends the Agreement due to the Client’s breach, XRii can claim any unpaid amounts listed in Schedule 2.
3. In the event that the Agreement is terminated due to a breach by XRii, XRii shall not be obligated to issue any refunds or make any payments to the Client, irrespective of any losses incurred by the Client.
4. In the event that the Agreement is terminated for any reason, all Intellectual Property Rights for work that has not been fully paid for will remain with XRii. The Client will not be entitled to use any incomplete work until all due payments are made. The Client shall immediately return all materials, code, and Intellectual Property related to the project to XRii.
5. If the estimated time frame for the completion of the Scope of Work becomes overdue by a period of four (4) weeks or more, the Client shall have the right to terminate this agreement without penalty.
   1. XRii shall not be held responsible for delays that are a result of circumstances beyond its reasonable control. Circumstances beyond XRii’s control include, but are not limited to Force majeure events, including, without limitation, acts of God, fire, flood, earthquakes, pandemics, or other unforeseeable and unpreventable events or delays or failures by the Client, its agents, employees, or affiliates to provide necessary information, approvals, or materials required for XRii to perform under this agreement.
   2. In the event that the estimated time frame becomes overdue and none of the exceptions apply, the Client may terminate this agreement by providing written notice to XRii. Upon receipt of the written notice, both parties shall have a period of five (5) business days to resolve the delay before the termination takes effect.
   3. Upon termination under this clause, XRii shall not be obligated to provide a pro-rata refund for any services not completed or goods not delivered. The Client acknowledges and agrees that all payments made to XRii are non-refundable.

20. Dispute resolution

1. Any disputes arising out of this Agreement will be first attempted to be resolved through negotiation.
2. If the dispute is not resolved within a reasonable period at XRii’s discretion, then any or all outstanding issues may be submitted to mediation appointed by XRii.

21. Notifications and communications

1. All formal notifications must be in writing and sent to the Parties at their respective email addresses.

22. Governing law and jurisdiction

1. This Agreement is governed by the laws of New South Wales, Australia, and the Parties consent to the jurisdiction of the courts in Victoria for any dispute arising out of this Agreement.

23. Entire agreement

1. This Agreement, including any Schedules or Addendums, constitutes the complete understanding between the Parties.
2. Amendments to this Agreement must be in writing and signed by authorised representatives of both Parties to be effective.