Terms and conditions

1 General

1.1 Definitions

4mation:  We, us, our staff, 4mation Technologies

Client: The client, you, your, your staff, your contractors

Agreement: These terms and conditions and the signed proposal 

Proposal: The signed document proposing our services to you

Bug: Functionality that does not work as specified in our specification documents

Consultant: 4mation team member assigned to execute the work

Cloud Service Provider: A third party cloud service provider that we use to provide cloud hosting to you – e.g. Amazon Web Services, Microsoft Azure, Google Cloud Platform

Cloud Service Provider Environment: The Client Cloud Service Provider account including any resources that have been provisioned with it, excluding the Client Application that resides within the Client  Cloud Service Provider account.

Client Application: The Client Application or software that is hosted within the Cloud Service Provider Environment

Ad-Hoc work: Services provided by us not through an Agile Innovation Package, Milestone Project, or Team Augmentation agreement.

1.2 Agreement to the terms and conditions

These Terms and Conditions govern the provision of all services we perform for you.  You can accept these Terms and Conditions by digitally or physically signing our Proposal or by continuing to instruct us. These Terms apply to all services we perform for you including those provided prior to such acceptance.

1.3 Changes to Terms and Conditions

We can revise these terms and conditions at any time, by notifying you in writing, and if you continue to instruct us, you are deemed to have accepted these changes.

1.4 Proposal Validity

We can revise any Proposal if returned more than two weeks from the Proposal creation date.

1.4.1 The Proposal is based on the information you provide and may be revised if you advise us of a change to the information initially provided.

1.5 Confidentiality

This document contains information confidential to us, provided for the sole purpose of enabling you to evaluate our Proposal.

You agree to maintain such information in confidence and not reproduce or otherwise disclose this information to any person not directly responsible for evaluation of its contents.

1.6 Invoicing, Rates, and Billing Policy

1.6.1 Billing Policy

All work is charged according to the Billing Policy, as updated from time to time, available at: www.4mation.com.au/billing-policy/

1.6.1.1 All figures unless otherwise specified exclude GST.

1.6.2 Rate Reviews

All rates (+ GST) will increase at the start of each financial year by a minimum of CPI or 3%, whichever is greater, rounded to the nearest dollar. CPI means the “All Groups CPI” for Sydney, published by the Australian Bureau of Statistics.

1.6.2.1 We can review day rates and package costs at our discretion. Notice of any rate changes will be supplied via email at least one month in advance.

1.6.3 Invoicing for Agile Innovation Packages, Milestone Projects, Team Augmentation, and Ad-Hoc Work

Agile Innovation Package and Team Augmentation invoices are sent on the 24th of each month for the following month in advance. Any additional days required are invoiced in advance.

1.6.3.1 Invoices are due 14 days from invoice date. Payment of any invoice is to be taken as evidence that the services have been provided in accordance with the Agreement, and acceptance that the services were satisfactorily supplied. 

1.6.3.2 If an invoice is not paid by the due date we reserve the right to cease providing service until the full balance of the account has been paid, and to charge interest on any overdue amount. Interest is calculated daily on a minimum of either 5% or the 90-day bank-accepted bill rate published by the Reserve Bank of Australia, whichever is greater. 

1.6.3.3 If you have an issue with an item on an invoice, you agree to notify accounts@4mation.com.au prior to the invoice due date and to pay the items not in dispute. We will make all reasonable efforts to resolve the issue with you promptly.

1.6.4 Invoicing for Cloud Services

Cloud Services invoices are sent at the start of each month for the previous month’s Cloud Services usage and the additional 4mation Cloud Services Management fee. Where we are billed by the Cloud Service Provider in USD, charges are converted and invoiced to you in AUD using the RBA conversion rate from the date of billing.

1.6.4.1 We reserve the right to terminate this Agreement and the Cloud Services Provider Environment if you have overdue invoice(s) by providing written notice.

1.6.5 Invoicing for Third Party Products or Services

Any third party plugins, software or services required are to be paid directly by the client. On request from the client, 4mation can pay and on-charge it to you with a 15% margin.

1.6.6 Invoicing for Additional Licences

If you request additional licences for the tools we use (eg Atlassian Suite, BitBucket, Slack etc), beyond those covered under our Billing Policy these will be on-charged to you with a 15% margin.

1.7 Intellectual Property

1.7.1 Content

All information to be included within the website or system must be provided by you in digital format prior to development commencing (format to be specified by us). It is your responsibility to ensure information supplied is accurate, complete and not misleading. We will not seek to verify the information provided and you agree to notify us if the information changes in a material way or affects the delivery of our services.

1.7.2 Ownership

You are granted a non-exclusive owned licence to the work we perform on your project (with the exclusion of any third party software) once it has been paid for in full by you. This owned license includes the right to modify the software.

1.7.3 Copyright, Legal Compliance and Regulations

We provide services based on the specifications in the Agreement. If you need to ensure the work complies with legal requirements or regulations, you agree to seek your own legal advice.

1.7.3.1 Copyright clearance for text, images and files supplied to us by you is your responsibility.

1.7.4 Acknowledgement

We reserve the right to use any work produced and publicly accessible for our promotional purposes.

1.7.4.1 We may prepare a case study to promote the innovative work you’re doing, and to educate the market on the advantages of high-quality software development. If so, this case study will be supplied for your review prior to publishing.

1.8 Warranties

1.8.1 No Warranty

No warranty is provided for Agile Innovation Packages, Milestone Projects, Ad-Hoc Work and Team Augmentation Services.

1.8.2 Limitation of Liability for Agile Innovation Packages, Milestone Projects, Ad-Hoc Work

To the extent permitted by law, our maximum aggregate liability for all causes of action to you in relation to the Agreement is limited to the total cost of the Agreement over the last 12 months.

1.8.3 Limitation of Liability for Cloud Services

To the extent permitted by law, our maximum aggregate liability for all causes of action to you in relation to Cloud Services within the  Agreement is limited to the total cost of the Cloud Services Management Fee within the Agreement over the last 12 months.

1.8.4 No Liability for Team Augmentation Service

To the extent permitted by law, we have no liability for the Team Augmentation service.

1.8.5 Security and Malicious Attacks

We are not responsible for security breaches or malicious attacks. A specialist third party security provider can be referred on request.

1.8.6 Indemnity

You agree to indemnify us against any liability (including legal costs) that we incur in connection with any claim by a third party arising from your breach of this Agreement, or that arises as a result of access to the website or system or the use of the information it contains.

1.9 Other

1.9.1 Solicitation

You agree not to employ our staff or ex staff until twelve months after this Agreement ends, or twelve months after you finish working with us, whichever occurs last.

1.9.1.1 You agree that if, for any reason, you breach this clause, you will immediately pay us twelve months of the staff member’s daily rate, or $150,000, whichever is greater.

1.9.2 Assignment

You agree not to assign or transfer any of your rights or obligations under this Agreement without our prior written consent.

1.9.3 Data Storage

We store Client data via third parties outside of our direct control (eg Amazon, Google Cloud, Gmail etc). Management, security and integrity of data storage are the direct responsibility of that third party and are governed by the privacy policy of the third party providing the service.

1.9.4 Governing Law

This Agreement is governed by the law of New South Wales, Australia. Each party submits to the exclusive jurisdiction of the courts of New South Wales, Australia.

1.9.5 Entirety of Agreement

The Agreement forms the entire agreement between us and supersedes all prior agreements, discussions, representations and warranties. To the extent of any inconsistency between these Terms and Conditions and the Proposal, these Terms and Conditions will apply.

1.9.6 Disputes

In the event of a dispute in connection with the Proposal or these Terms and conditions, you agree to notify us of the specific complaints or points of disagreement, and to use good faith efforts to resolve such dispute, without legal action for resolution. We agree to meet promptly after such notification to attempt to resolve such dispute through good faith discussions. In the event that we cannot resolve such dispute within fourteen days of such initial meeting, then the parties may elect to commence mediation or legal proceedings.

1.9.7 Subcontractors

To fulfil the contract we may from time to time grow using specialist subcontractors who work as part of our team.

2. Service Specific Terms

These terms apply for each type of Service we deliver, whether agreed as part of an Agreement or requested by you.

2.1 Agile Innovation Packages, Support Packages

2.1.1 Unutilised Days

We will provide a credit when we are unable to resource for planned work. 

2.1.2 Estimating Effort

We do not provide fixed quotes for work carried out under an Agile Innovation Package. 

2.1.3 Approval to Commence Work

You agree that we can commence work on any task you request that is expected to take under half a day, without providing an estimate.

2.1.4 Minimum Package Term

All packages are for a minimum period of six months, after which the package will continue on a monthly basis.

2.1.5 Package Increase

To increase your package, you agree to provide us written notice in the month prior to the increase taking effect and commit to this increased minimum package level for a minimum of three months.

2.1.6 Agile Innovation Package Reduction

You can reduce your package to the next lowest package by providing us written notice, a minimum of one month (minimum of three months for packages above 35 days) prior to the month the reduction takes effect. Reductions can only occur outside minimum commitment/cancellation periods.

2.1.7 Package Cancellation

To cancel your package, you agree to provide us written notice, a minimum of three months (minimum of six months for packages above 35 days) prior to the month the cancellation takes effect. After the cancellation period any unused days are forfeit.

2.1.7.1 After the initial six months we can cancel your package by providing written notice, a minimum of three months prior to the month the cancellation takes effect. After the cancellation period any unused days are forfeit.

2.2 Milestone Projects

2.2.1 Milestone Invoicing & Payment Terms

Unless otherwise specified in the Agreement, half of the total amount of the Agreement is to be paid prior to work commencing, and the other half on development completion and prior to go-live.

2.2.1.1 Milestone invoices will be provided by us when a milestone is completed (or approved where approval is required).

2.2.2 Project Termination

If the project is terminated, we will invoice for work carried out up to and including the date of termination. All milestone or progress payments invoiced to date are non-refundable.

2.2.2.1 If resources are not able to be redeployed, we reserve the right to charge up to the value of the remaining amount of the Agreement.

2.2.3 Estimating Effort

Unless estimates are marked as ‘Fixed’, the work is billed on an hourly basis. 

2.2.4 Feedback and Delays

If content, approval or change requests are not provided by you  within two business days of being requested by us, the delivery of the project may be delayed.

2.2.4.1 An additional fee to cover rescheduling costs may be charged if you cause a delay or put our services on hold.

2.3 Team Augmentation Service

2.3.1 Minimum Term

Unless otherwise specified in the pricing section of the Proposal, you agree to commit to that number of Consultant days per month for a minimum of three months (or a minimum of six months for more than 60 Consultant days per month), after which time the engagement will continue on a monthly basis.

2.3.1.1 For minimum commitments of less than three months, we may replace or remove the Consultant with two weeks notice. If the Consultant is to be placed at another client, you have the right to match the alternative agreement to retain the Consultant. If you don’t match the offer, Unused Consultant days will be refunded. 

2.3.2 Increase

To increase Consultants, you agree to provide us written notice in the month prior to the increase taking effect and commit to this increased number of Consultants for a minimum of three months (minimum of six months if you increase to more than three Consultants).

2.3.3 Reduction

You can reduce your monthly commitment by up to one Consultant, by providing us written notice, a minimum of one month prior to the month the reduction takes effect. This reduction can only take place outside any minimum/cancellation commitments with the lowest possible monthly commitment after reduction being 20 Consultant days.

2.3.4 Cancellation

To cancel the service, you agree to provide us written notice, a minimum of three months (minimum of six months for more than 60 Consultant days per month) prior to the month the cancellation takes effect.

2.3.4.1 We reserve the right to cancel your service by providing written notice a minimum of three months prior to the month the cancellation takes effect.

2.3.4.2 Unused Consultant days are forfeit at the end of the cancellation period.

2.3.5 Unused Consultant Days

Any Consultant days not worked due to Consultant leave or lack of working days in the month will roll over for up to three months.

Any unused Consultant days after this time or at Cancellation, are forfeit.

2.3.6 Short Extension Rates

Consultants can be extended with smaller commitments of between one week and three months at 1.2x the rate of the Consultant and this rate will be subject to your approval ahead of the short extension.

2.3.7 Responsibility for Management

You are responsible for managing projects that Consultants work on and the quality and efficiency of their output.

We offer other service types (Agile Innovation Packages, Milestone Projects) that include project management accountability.

2.3.8 Standard and Overtime Hours

A standard Consultant work day is 7.5 hours of work, completed on a NSW Business Day between 8:45am and 5:15pm AEST/AEDT. Time worked outside of 7am and 7pm AEST/AEDT or in excess of 7.5 hours in a day is charged at 1.2x the rate of the Consultant.

2.3.9 Replacement Policy

If a Consultant ceases to be our employee, we will make all reasonable efforts to provide a replacement Consultant within four weeks of the departure date.

2.3.10 Permanent hire option

You have an option to permanently hire the Consultant (with their consent) provided they have been placed with you for a continuous 12 month period, and you have agreed the Consultant’s total annual compensation package (including all bonuses) with us, and paid a fee of 40% of the Consultant’s total annual compensation package (including all bonuses) to us before the Consultant’s  last day of employment with us. After the Consultant’s last day of employment with us, any Unused Consultant days or monthly commitments in relation to the Consultant are void..

2.3.11 Introducing Candidates

We may introduce you to candidates who we do not yet employ, including but not limited to via phone, email or other electronic communication.

You agree not to employ or contract these candidates for at least twelve months after the introduction, and if for any reason, you breach this clause, you will immediately pay us 12 months of the candidate’s salary, or $150,000, whichever is greater.

If we introduce a candidate you have already considered for this role, you agree to notify us within 48 hours of our introduction and provide evidence of the prior introduction should you intend to hire the Candidate within twelve months of our introduction.

2.4 Cloud Services

2.4.1 Minimum Term 

The minimum term for any Cloud Service is three months, after which the service will continue on a monthly basis.

2.4.2 Backups

Unless otherwise stated in the Agreement, any backups will be hosted within the Cloud Service Provider’s data centre(s) and retained for a period of seven days, after which they will be deleted. We are not responsible for data integrity of backups and are not liable for failure to restore backups. It is your responsibility to verify the integrity of backups.

2.4.2.1 You agree there is a risk of data loss within data centres operated by the Cloud Service Provider.

2.4.3 Scheduled Maintenance

If scheduled maintenance is required which will cause downtime for the Client Application, this will be agreed with you in advance. 

2.4.4 Cloud Service Provider Customer Agreement

Where you have an existing Cloud Service Provider account, you agree to give us full access to the account so we can carry out management and administration tasks.

2.4.4.1 Where you do not have an existing Cloud Service Provider account, you agree to give us authority to create one on your behalf with full rights to carry out the services described in this Agreement.

2.4.4.2 You agree to comply with the Cloud Service Provider Customer Agreement (CSPCA) and acknowledge that the Cloud Service Provider may change their CSPCA at any time without prior notification. A digital copy of the CSPCA can be provided upon request.

2.4.4.3 You agree not to give any third party access to the Cloud Service Provider Environment without prior written consent from us.

2.4.5 Cancellation

To cancel the service, you agree to provide us written notice at least three months prior to the day the cancellation takes effect, at which point we will terminate the Client Cloud Services account.

2.4.5.1 The Cloud Service Provider account will be transferred to you following termination of the 4mation Cloud Services agreement.

You agree that the Cloud Service Provider will continue to charge you after the termination of the Cloud Services Agreement.

2.5 Recruitment Service

2.5.1 Fees & Payment Terms 

Introduction Fee: A percentage of the candidate’s total annual package (inclusive of all remuneration including but not limited to salary, super and bonuses). It is 20% by default, or if the role is provided exclusively to us to fill, 15%.

Payment terms: We will generate an invoice when the candidate signs an agreement with you. You agree to pay within 14 days, or prior to the commencement of the candidate’s engagement with you, whichever occurs first. 

2.5.2 Replacement Guarantee

If the candidate is terminated for cause by you within the first 12 weeks of engagement, you agree to notify us within 7 days of termination. We will then provide you a credit which can be applied to find a replacement candidate for the role or to fill other roles via our recruitment service.  This credit is valid for 6 months from the time of termination.  We issue credits only, we do not provide refunds.

The Replacement Guarantee will not apply if you have failed to comply with any of the terms of our  Recruitment Service.

If you engage or re-engage the candidate within 12 months from the date of termination, you will immediately pay us 12 months of the candidate’s salary, or $150,000, whichever is greater.

2.5.3 Introducing Candidates

This agreement applies to all candidates introduced to you by us including but not limited to via phone, email or other electronic communication (eg Slack).

If we introduce a candidate you have already considered for this role via another agency, you will notify us within 48 hours of our introduction and provide evidence of the prior introduction. Failure to do so will result in fees remaining payable.

2.5.4 Hiring Candidates

You agree to notify us immediately on making an offer or revised offer to any candidate introduced by us, and provide details of the offer.

You will pay us the Introduction Fee if within 12 months of the introduction if:

1. 1.You engage the candidate, or
2. 2.You disclose details of the candidate to a third party, and the third party engages the candidate
3. 3.You engage the candidate in any other role
4. 4.If you fail to notify us of the total annual package, we may at our discretion calculate it based on market rate and package or the package of the candidate earned in the last 12 months of their previous engagement.

If you withdraw an offer to a candidate (irrespective of reason) you will pay us the Introduction Fee.

2.5.5 Assessing Candidates & References

We will make reasonable endeavours to ensure information on a candidate is accurate, and will put forward candidates we believe are suitable for interview, but are not responsible for matters outside of our knowledge.  The end hiring decision is yours and you accept all liability for the candidate. We nor anyone acting on our behalf accept liability for the accuracy of any information supplied in relation to candidates, whether this concerns employment history, work status, qualifications or personal circumstances or any other matter whatsoever.

We do not undertake criminal records or medical checks. You agree to make your own assessment of candidates employment history, references, and anything else that may affect their suitability for the role.  

2.5.6 No Liability for Recruitment Service

To the extent permitted by law, we have no liability for the Recruitment Service.

2.5.7 Agreement Term

This agreement takes effect from the date of signing, and until four weeks after you provide written notice to us that you would like to terminate the agreement.

Termination does not affect any introductions made prior to notice being given by either party. Fees for any Introduction made prior to the effective date of termination are still due.