Terms of Supply between FusionTech and the Client.
This document sets out the terms and conditions pursuant to which FusionTech ACN 65 9258 849 will provide you, the Client, with the Services. This document together with the Quotation forms the contract between the parties.
Definitions and Interpretation
In this document, terms that are capitalized are defined terms and will have the following meanings:
“FusionTech Labour Charge”
means the costs FusionTech charges the Client for its labour andprofessional services with respect to a Service Guarantee Project and excludes Third Party Costs or disbursements that FusionTech incurred or committed to incur in the process of delivering the Service Guarantee Project.
“Business Day”
means a day that is Monday to Friday in which FusionTech is open for business and excluding state or national public holiday.
“Client”
means the person, firm, project or company who purchases the Services from FusionTech
“Contract”
means the agreement FusionTech executes with the Client or enters into with the Client following acceptance by conduct of the Client for the supply of the Services as constituted by these terms and conditions and the Quotation;
“Contract Price”
means the price stated in the Quotation and as may be varied from time to time in accordance with the Contract;
“Deliverables”
means and agreed files as outlined in the Quotation.
“Intellectual Property”
means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names and inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
“Project”
means the project described in the Quotation;
“Services”
means the services which includes the Project and the Deliverables to be provided by FusionTech under the Contract together with any additional services which FusionTech provides, or agrees to provide, to the Client;
“Service Guarantee”
means a Project delivery guaranteed time commitment as set out in Clause 7.
“Third Party Costs”
means any costs incurred or committed to be incurred by FusionTech in delivering a Service Guaranteed Project other than FusionTech Labour Charge.
“Quotation”
means the FusionTech document entitled Quotation which sets out, amongst other things, the description of the Services, Project, Deliverables, commencement date for the Project, time line and relevant charges for the Services;
Disclaimers:
Due to the fact that the total number of test cases are unlimited, our audits make no statements or warranties on security of the code. It also cannot be considered as a sufficient assessment regarding the utility and safety of the code, bug free status or any other statements of the contract. While we have done our best in conducting the analysis and producing the report, it is important to note that you should not rely on this report only. FusionTech is not responsible for the safety of any funds, and is not in any way liable for the security of the project.
Technical Disclaimer:
Smart contracts are deployed and executed on a blockchain platform. The platform, its programming language, and other software related to the smart contract can have their own vulnerabilities that can lead to attacks. Thus, our audits can’t guarantee explicit security of the audited smart contracts.
1. The Contract and Cancellation
The contract between FusionTech and the Client consist of these terms and conditions and the Quotation. The contract shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a Quotation, or specification or other documents supplied by the Client, or implied by law, trade, custom, practice or course of dealing. A valid and binding agreement is formed between the parties once the Client signs the Quotation, however, if the Client does not sign the Quotation but provide a verbal or written confirmation to FusionTech to proceed and deliver the Services, the Client shall be deemed to have read and accepted these terms and conditions and agree to be bound by them. FusionTech may issue confirmation to the Client with respect to the Contract, however, the lack of confirmation does not impact the validity or enforceability of the Contract. Quotations are given by FusionTech on the basis that no Contract shall come into existence except in accordance with this Clause. Any Quotation is valid for a period of 14 days from its date unless otherwise agreed by FusionTech and provided that FusionTech has not previously withdrawn it.
Cancellation Policy
Subject to the provisions in this clause with respect to the refund of the deposit paid by the Client pursuant to clause 4, the Client may cancel a Project up to three clear Business Days before the Project is due to commence by notifying FusionTech in writing of the cancellation. The Project commencement date is set out in the Quotation. For the avoidance of doubt; a) three clear Business Days means that the notice must be received by FusionTech offices exactly on or before 9 am on the third Business Day before the Project is due to commence; b) it is the Client responsibility to verify and ensure that the notice of cancellation is received by FusionTech at least three clear Business Days; and c) in the event of doubt in relation to delivery of the notice of cancellation it is presumed that the notice was not received by FusionTech. If the Client cancels a Project in compliance with the time frame as set out in this clause, FusionTech shall refund the Client the deposit paid pursuant to clause 4 within 28 calendar days of FusionTech receiving the cancellation notice.In the event FusionTech incurred or committed incur costs in the preparation of the cancelled Project, other than FusionTech internal labour costs, then FusionTech shall be entitled to deduct any such incurred or committed costs from the deposit and refund the Client the remainder of the deposit.If the Client cancels a Project in breach of the timeline as set out in this Clause, the Client shall forfeit the deposit paid by the Client pursuant to clause 4.
The Client Acknowledges and agrees that;
a) the cancellation of a Project with less than three clear Business Days will result in damage being sustained by FusionTech; and b) the forfeiture of the deposit as set out in this clause is not a penalty but the payment by the Client of compensation to FusionTech as a reasonable and genuine pre-estimate of the damage FusionTech sustain as a consequence of the cancellation of the Project outside of the time frame allowed under this clause.
2. Cancellation of monthly services
In addition to the clauses set out in the terms and conditions above relating to cancellation policy, the client agrees that 30 days notice will be given by the client for cancellation/pause on any monthly or recurring services that FusionTech or its subsidiaries provide to the client.
3. Reschedule fee
Without limiting any other term in this Agreement, if you delay the undertaking of the Project by two weeks (by, for example, not providing instructions, information or Client Materials we have requested from you), we may decide to cease working on a Project by providing written notice to you. If this occurs: a) We will invoice you for our Services performed up to the date of termination (such final amount to be determined taking into account any payments already made by you), as well as any applicable expenses that we have incurred or are due to incur before the date of termination; and b) If you wish for the Project to continue at this stage, you must pay us a reschedule fee of $750 plus GST.
4. Description of the Project and Delivery of the Services.
FusionTech agrees to develop the Project and deliver the Services according to the terms listed in the Quotation provided.
5. Client’s Reviews and Additional Revisions.
The Client must submit any and all revisions within 28 days of receiving preliminary audits. FusionTech will accept a maximum of 2 rounds of revision from the first report. Any work deemed outside the scope of these revisions will be classified as additional work to the Quotation and is subject to additional charges outlined in this clause. Any additional revisions and work deemed by FusionTech to be outside the scope of the Quotation will be billed at normal rates, with all work to be approved in writing prior to commencement. This quote supersedes any and all other quotes referencing the Project or the Services. GST (Goods and Services Tax) shall be charged in accordance with the relevant legislation governing goods and services tax and at the applicable rate dictated under this legislation.
6. Payment.
The Client must pay 50% of the price quoted for a Project in the Quotation on signing of the Quotation or giving instructions to FusionTech to proceed with the Project. On completion of a Project, the Client must pay the full price as detailed in the Quotation, together with any additional revisions, on or before the required date for payment listed on the final Invoice. Failure to pay any payment on time shall entitle FusionTech to delay or stop any work it is doing under the Services until payment is made in full.
7. Delivery of Project.
General Delivery Commitment
FusionTech will use all reasonable efforts in the development of the Project and endeavour to complete and deliver to the Client all final deliverable files related to the Project no later than the date indicated either in the Quotation or via email provided that pre-payment (if requested) and all requested instructions and material have been received by FusionTech from the Client. Any delay in the completion of the Project due to actions or negligence by the Client, transportation delays, illness, or circumstances outside the control of FusionTech may alter the delivery date. FusionTech will make every effort to notify Client of any delays to the estimated delivery date as soon as possible. While FusionTech endeavours to keep delivery dates, any delay or delivery for any reason whatsoever, will not constitute a breach of this Contract by FusionTech and will not entitle the Client to claim for any damages or compensation including consequential loss or damage or to cancel, rescind or terminate the Contract.
Service Guarantee
Subject to the exclusions conditions set out in this clause, FusionTech undertakes, in relation to a Project specifically marked as Service Guarantee Projects, to deliver the Project on time as agreed with the Client from time to time and set out in the Quotation or the Project is delivered to the Client free of FusionTech Labour Charge. For the avoidance of doubt; a. only a Project that are specifically marked and designated by FusionTech to be a Service Guarantee Project qualifies for the Service Guarantee. In the event of doubt, the Project is not a Service Guarantee Project; and b. the only waiver with respect to costs in relation to Service Guarantee Projects is the exclusion of FusionTech Labour Charge.
Exclusion Conditions
Notwithstanding clause 3 of these terms and conditions, the Quotation will set out the timeline for the Client to return any revisions or comments on the Project. Time is of the essence with respect to the Client providing revisions and comments in relation to a Project. In the event the Client fails to deliver to FusionTech its revisions and or comments in compliance with the time line as set out in the Quotation, FusionTech may, in its absolute discretion, either cancel the Service Guarantee status of the Project or agree to maintain the Service Guarantee for the Project subject to FusionTech time line for delivering the Project being extended to commensurate (but not necessarily equal to or exactly as) the delay of the Client.This clause and the Service Guarantee shall not apply to any delay in a Project delivery time table if FusionTech can reasonably demonstrate that the delay was not under its direct or indirect control. For the avoidance of doubt, if the delivery of a Project is dependent on a third party delivery of goods or services to the Project or to FusionTech then the delay by the third party is an event not under the direct or indirect control of FusionTech notwithstanding that FusionTech ordered these goods or services from the third party.
8. Proofs.
Emailed proofs will be presented for the Client’s approval at each stage of production. If revisions are required, a request must be made to FusionTech in writing and will/may constitute additional costs in accordance with clause 3 above. This is dependent on degree of difficulty in changes and time it takes to complete.
9. Ownership of Reports and Project Outcomes.
Ownership of any Intellectual Property in all the Deliverables, Project and any component of the Services prepared by FusionTech shall remain with FusionTech, and FusionTech shall provide to the Client a personal perpetual, non-transferable royalty free ‘licence’ to use the materials and Deliverables for the Project for which they were created, on the condition that all amounts owing to FusionTech have been paid. In the event that any amount is outstanding to FusionTech, then FusionTech reserves the right to revoke the ‘license’ to use any Intellectual Property until all amounts have been paid. For the avoidance of doubt, FusionTech shall retain all right, title and interest in all their reports, whether in draft, mock-up, concept or final development for the Project. Specifically, but without limitation, FusionTech shall hold all right, title, and interest in and to: a) all text, graphics or digital components of the Project; and any findings / outcomes in the audit report or project created by FusionTech. The Client shall not do anything that may infringe upon or in any way undermine FusionTech’s right, title, and interest in the Project, as described in this clause. Notwithstanding the above, the Client shall retain and, FusionTech shall have no proprietary rights whatsoever in all of the Client’s Intellectual Property rights in any and all text, images or other components and/or materials owned by the Client, or which the Client has the legal right to use, that are delivered to FusionTech, including but not limited to software, code, unique project information, related documentation, marketing material, logos, and tag lines (Client’s Proprietary Material). FusionTech agrees that they shall not use the Client’s Proprietary Material for any other purpose than those expressly set forth in this Contract.
10. Purpose Test and Liability
The Client acknowledges that the instructions issued to FusionTech were specific and described the purpose for which the Services are to be provided and the industry in which the Services will be used. FusionTech takes into account the industry of the Client and the purpose for which the Client intends to use the Services when delivering the Project and Deliverables. The Client acknowledges and agrees that FusionTech shall have no liability whatsoever in the event the Client uses the Project and Deliverables for a purpose and or in an industry that was not disclosed to FusionTech or agreed to by FusionTech.
11. Consequence of a Breach.
In the event the Client fails to make any of the payments referenced in the Project by the set terms, FusionTech have the right, but are not obligated, to pursue any or all of the following remedies:a) terminate the Contract,b) withhold audit reports or projects being completed by FusionTech,c) bring legal action for the recovery of the amount outstanding and any enforcement expenses including legal costs; andd) charge interest on the overdue amount at 15% per annum or such other rate as allowed under the Penalty Interest Rate Act 1983 (VIC) calculated daily and accumulated until the outstanding amount is paid in full.The Client is responsible for all material costs as outlined in the Project, and accepts responsibility for all additional material costs that FusionTech may incur in the development of this Project.
12. Confidentiality.
The Client and FusionTech acknowledge and agree that the specifications and all other documents and information related to the development of the Project, excluding however, Client’s Proprietary Material, (the Confidential Information) will constitute valuable trade secrets of FusionTech. The Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Contract, without FusionTech’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
13. General Provisions
Terms and Conditions
a) These terms and conditions apply to all transactions between FusionTech and the Client. b) Entire Agreement
This Contract contains the entire agreement between parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Contract shall be valid unless made in writing and signed by all of the parties hereto. c) Governing Law
The Contract is governed by the laws in force in the state of New South Wales. Both parties agree to submit to the non- exclusive jurisdiction of the Courts of that state. d) Binding Effect.
This Contract shall be binding upon and ensure to the benefit of the Client and FusionTech and their respective successors and assigns, provided that FusionTech shall not assign any of their obligations under this Contract without the Client’s prior written consent. e) Waiver
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Contract at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Contract. f) Good Faith
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Contract. g) No Right to Assign
The Client has no right to assign, sell, or modify or otherwise alter the Project, except upon the express written advanced approval of FusionTech, which consent can be withheld for any reason.
h) Right to Remove Project
In the event the Client fails to make any of the payments within the time prescribed in the terms, FusionTech have the right immediately cease all work on the Project until payment in full is paid, including the removal of any online/internet project that may be current or live on the internet.
i) Indemnification
The Client warrants that the Client Proprietary Materials are legally owned or licensed to the Client. The Client agrees to indemnify and hold FusionTech harmless from any and all claims brought by any third-party relating to the Client’s Proprietary Material provided by the Client to FusionTech including any and all demands, liabilities, losses, reasonable associated costs and claims including attorney’s fees arising out of injury caused by the Client’s Proprietary Material supplied to FusionTech including but not limited to copyright infringement or defective products sold as a result of the Client’s distribution or use of the Project.
j) Use of the Project for Promotional Purposes
The Client grants FusionTech the right to use the Project for promotional purposes and/or to crosslink it with other marketing venues developed by FusionTech, but excludes the right to use confidential material as highlighted by the Client in writing.
k) Right to Style or to Make Derivative Works
Subject to Clause 9 above, FusionTech have the exclusive rights in making any derivative similar Works of the Project and similarities between the Client’s Project and future projects constitutes FusionTech’s methods and style.
l) Legal Fees
In the event that FusionTech employs a Solicitor or debt collector to enforce any of the terms of the Contract, FusionTech shall be entitled to recover its legal fees or other enforcement expenses incurred in pursuit of its rights under this Contract.
m) Payment
You shall pay all of our costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from you.
14.
The Audit results may return negatively, and the report is not guaranteed to promote the security of the clients software if it is not found to be secure. In this scenario, the client can choose to keep the report confidential.
15.
FusionTech does not guarantee that a hack will not occur after an audit or any of our services and our clients acknowledge this.
16. Changes to Terms
FusionTech may change the Contract terms at any time provided that such change will not affect the Contract already executed by the parties. Details of FusionTech’s current terms will always be available at https://www.hashlock.com.au/terms-and-conditions . Changes to the Contract will become effective upon their publication on FusionTech’s website and the Client’s use of the Services following publication of any amended version of the Contract terms will constitute acceptance of the amended terms.
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