IDEA LAB® Information Technology Solutions
Standard Terms and Conditions
Applicable to all Proposals and Offerings for Technology Products and Services
Updated August 1, 2020
SOFTWARE PRODUCT AND DELIVERABLES
IDEA LAB shall build the Software Product/s or Digital Solution/s (“Software Product”), based on open-source technology, using open-source and/or proprietary third party operating systems/databases/ frameworks/peripheral applications/scripts/modules/plugins, and utilizing a combination of internally developed, third party proprietary, and open source modules, to deliver the functionalities required by CLIENT as described in this Agreement. Unless otherwise specified, IDEA LAB shall deliver as part of the Agreement, the complete source code of the Software Product for CLIENT use. CLIENT may use, reuse, alter, and modify the code according to CLIENT’s current and future preferences. However, CLIENT may not transfer, sell, resell, assign, lend, share, or allow the use of the Software Product by any third party including the CLIENT’s subsidiaries, parent company, affiliates, suppliers, customers, partners, investors, owners, employees (i.e. on a personal capacity and not in behalf of the CLIENT), creditors, and others.
Notwithstanding, all rights, licenses, and limitations pertaining to specific pre-existing software modules utilized in the Software Products remain in their original form. Ownership of the delivered Software Product as well as copyright thereto shall pertain to and be exercised exclusively by the CLIENT upon completion of this Agreement except for the pre-existing or necessary software modules, frameworks, scripts, components, or third party codes which are used as part of the Software Product and may already be covered by existing stipulations in their original licenses and licensing forms. IDEA LAB shall declare all such software components in the Schedule of Products.
Delivery of said Software Product requires CLIENT-provided prerequisites which include but not limited to: hardware (Intel-based servers), base server software environment (i.e. Operating System, SQL, and web server software following IDEA LAB specifications), and connectivity (to LAN, high speed public internet, and to other relevant Servers, as required).
All IDEA LAB-developed Software Products make use of 3rd party open source components like frameworks, operating systems, web servers, platforms, databases, modules, scripts, plugins, libraries, application servers, etc. At the time the project commences, IDEA LAB chooses the specific versions/ releases of these 3rd party components and ensures that the version/release selected to be used for the Software Product is current and has active ongoing support at the time of selection. As all software eventually and inevitably undergo obsolescence, end of life, support inactivity/withdrawal, CLIENT acknowledges and accepts that the components that IDEA LAB selected and used for the Software Product may become obsolete, undesireable, vulnerable (i.e. prone to security issues), and/or unuseable, thus rendering the Software Product also unuseable and requiring updates, modifications, upgrades, or total reconstruction. If commercially contracted by CLIENT to upgrade or remedy issues in the Software Product, IDEA LAB shall exert best effort to provide fixes or solutions which are feasible, workable, cost efficient, realistic or available. However IDEA LAB does not guarantee that all future issues involving the Software Product can be or will be resolved. CLIENT shall hold IDEA LAB harmless in cases when the Software Product and/or its components cannot anymore be fixed, remedied, modified, or upgraded for any reason whatsoever.
SOFTWARE PRODUCT DOCUMENTATION
For CMS (Content Management System) solutions built entirely by IDEA LAB, IDEA LAB shall provide a high-level USER GUIDE (screenshots of CMS Admin interface with select call-out labels and comments) for CLIENT reference. A brief walk-through and demonstration will be conducted by IDEA LAB in CLIENT premises upon turn-over of Software Product. Technical documentation for the Software Product and/or end user training are NOT included in this proposal unless stated otherwise. This provision does not apply to solutions made by 3rd Party vendors (ex. WordPress, Joomla, etc.).
INVOICING AND PAYMENTS
All contracts will be invoiced under the name of “IDEA LAB Information Technology Solutions”. All payments should be made using manager’s checks addressed to IDEA LAB Information Technology Solutions. Unless indicated, all payments of fees and expenses specified herein shall be made free and clear of any taxes, VAT, levies, import duties, charges or withholdings of any nature imposed by any jurisdiction.
All invoices are payable within 14 days of receipt. A monthly service fee of 3.0%, or the maximum allowed by law, whichever is higher, is payable on all overdue balances. All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
REPRESENTATIONS AND WARRANTIES
CLIENT acknowledges that IDEA LAB provides its services and resulting Software Product (if any) AS IS AND WITH ALL FAULTS and CLIENT agrees that in no event shall IDEA LAB, its owners, officers, employees, and affiliates be liable, whether in contract or tort (including negligence) for damages in excess of the net profit of IDEA LAB for the software or service.
Further, IDEA LAB shall not be liable for any indirect, incidental, special or consequential damages of any kind, or loss of revenue or profits, loss of business, loss of information or data, or any and all financial losses arising out of or in connection with the ability or inability to use any and all IDEA LAB deliverables including the Software Product resulting from IDEA LAB’s rendering of service, to the full extent these damages may be disclaimed by law.
EVALUATION AND ACCEPTANCE
CLIENT shall, within 5 business days after receiving each Deliverable, notify IDEA LAB in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. IDEA LAB shall, within 5 business days of receiving CLIENTs notification, correct and submit a revised Deliverable to CLIENT. CLIENT shall, within 5 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after 5 corrections by IDEA LAB (for the same specific issue or non-compliance), CLIENT finds the Deliverables are still not acceptable, CLIENT may terminate this agreement subject to the termination clauses of this Agreement. If CLIENT fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
ACCEPTANCE AND DELIVERY
It is possible to encounter delays on the public launch of the Software Product, or installation of the Software Product in the PRODUCTION server due to issues or delays beyond the control of IDEA LAB (i.e. delay is due to CLIENT themselves or a 3rd party, etc.). As such, for purposes of PAYMENT SCHEDULES, and LIMITED POST-INSTALLATION SUPPORT (i.e. “software warranty”), the project/product/software/ software product is deemed delivered and accepted by CLIENT upon 30 calendar days after installation of the Software Product in CLIENT’s designated server for UAT (User Acceptance Testing) even if the said Software Product is not yet really launched publicly and/or not yet installed on the Production server.
LIMITED POST-INSTALLATION SUPPORT FOR BUG FIXES (WARRANTY)
This provision applies ONLY to systems or solutions built and developed by IDEA LAB. This provision will NOT APPLY to all software, systems, components, or solutions built by 3rd party vendors even if they are implemented or installed by IDEA LAB (like WordPress, Joomla, etc.) for CLIENT’s use.
For a period of 3 calendar months after installation on PRODUCTION server or Acceptance/Delivery (whichever comes first), IDEA LAB shall provide remote technical support to troubleshoot issues in the application, fix bugs, and address technical programming issues found by the CLIENT in the system. For any bugs encountered, CLIENT is to inform IDEA LAB immediately with complete details of the issue (i.e. user scenario, actual activities/keystrokes/ actions done, expected result, actual results, and screenshots) and IDEA LAB will respond accordingly. This service DOES NOT include software enhancements, additional pages, additional features, or change requests (i.e. requirements that are NOT listed in this contract, approved wireframe, aesthetic design, technical specifications/features listing, and SD).
Bug Fixes and Troubleshooting done remotely during this 3 month period will be done by IDEA LAB at no additional charge to CLIENT. Change Requests, Variation Orders, onsite support, new features, or new pages requested by CLIENT and done by IDEA LAB during this 3 month period will entail additional charge to CLIENT (i.e. cost of which is to be determined as required and will be covered in a separate Contract). Any technical services rendered AFTER the 3 month period (including bug fixes, troubleshooting or enhancements), will be charged to CLIENT and will be covered in a separate Contract.
SOFTWARE MAINTENANCE OPTION
For systems or solutions built and developed by IDEA LAB, CLIENT may avail of additional Software Maintenance coverage for the main Software Product including the recent enhancements to cover the period after the effectivity of any ongoing Maintenance Agreement. This service will be covered in a separate contract and will entail additional fees.
If there is no ongoing software maintenance contract to support the IDEA LAB-developed Software Product, CLIENT may avail of support services from IDEA LAB on a “per call or per request basis”. In this arrangement, IDEA LAB will charge the CLIENT standard man hour fees and will provide a cost estimate for each request. Execution of these requests are subject to CLIENT’s prior approval. Fulfillment of these requests will be subject to availability of the applicable resources and will be served on a best effort basis.
Particularly for Mobile Software Products, in the absence of an ongoing software maintenance contract to support these Mobile Apps, any App Software updates will be charged on a per request basis. Note that all App updates need to go through the same App Store process which can take several weeks.
LIMITED SUPPORT FOR POST-ACCEPTANCE ENHANCEMENTS
For enhancements implemented on existing/delivered IDEA LAB-developed Software Products, the Post-Implementation support or warranty schedule or M.A. for the main Software Product will still apply and will be followed. Support for the enhancements will depend on the SLA, coverage, limitations, and inclusions of the Warranty or M.A. During the Warranty or M.A. effectivity period, for any bugs encountered on the Software Product enhancements implemented, CLIENT is to inform IDEA LAB immediately with complete details of the issue (i.e. user scenario, actual activities/ keystrokes / actions done, expected result, actual results, and screenshots) and IDEA LAB will respond accordingly.
This service DOES NOT include further software enhancements, additional pages, additional features, or change requests (i.e. requirements that are NOT listed in this contract, approved wireframe, aesthetic design, prototype, technical specifications/features listing, and SD).
Bug Fixes and Troubleshooting during the effective M.A. period or Warranty period will be done by IDEA LAB as part of the M.A. or Warranty deliverables and subject to the M.A. or Warranty stipulations and available Man Hour allocations. Any Change Requests, Variation Orders, new features, or new pages requested by CLIENT and done by IDEA LAB will entail additional charges to CLIENT (i.e. cost of which is to be determined as required and will be covered in a separate Contract). Any technical services rendered AFTER the Warranty or M.A. effectivity period (including bug fixes, troubleshooting, or enhancements), will be charged to CLIENT and will be covered in a separate Contract.
VALIDITY OF PROPOSAL
Any submitted quotation is valid for a period of 30 days from date of proposal and may be subject to change depending on final details, agreed detailed scope of work, timelines, and deliverables, and other agreements to be set on the final contract.
CHANGES TO PROJECT SCOPE
If CLIENT wants to change the Scope of Work after acceptance of the Agreement or Order, CLIENT shall send IDEA LAB a written Change Order describing the requested changes in detail. Within 7 business days of receiving a Change Order, IDEA LAB will respond with a statement proposing IDEA LAB’s availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. IDEA LAB will evaluate each Change Order at its standard rate and charges. CLIENT will be billed on a time and materials basis at IDEA LAB’s hourly rate. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. IDEA LAB may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes. CLIENT will have 5 days to respond in writing accepting or rejecting the new proposal. If CLIENT rejects the proposal, IDEA LAB will not be obligated to perform any services beyond those in the original Agreement.
CLIENT shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by CLIENT will result in a day-for-day extension of the due date for all Deliverables. Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
MARKETING AND PROMOTION
IDEA LAB retains the right to reproduce, publish and display the Deliverables in IDEA LAB’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
RELATIONSHIP OF THE PARTIES
IDEA LAB is an independent contractor. IDEA LAB shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by the corresponding Service Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in the corresponding Service Agreement. All rights granted to CLIENT are contractual in nature and are expressly defined by the corresponding Service Agreement.
TERM AND TERMINATION
The Service Agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated. In cases where CLIENT decides to terminate the Project while it is already in progress, CLIENT agrees to pay IDEA LAB for the Services performed through the date of termination in the amount of a prorated portion of the fees due.
TERMINATION FOR CONVENIENCE (for SaaS) AND FEES
For Agreements involving SaaS (Software as a Service) where a monthly subscription fee is due for a set MINIMUM period (i.e. 6, 12, 18, or 24 months), CLIENT may still terminate the Agreement or Service for convenience at any time on thirty (30) days advance written notice. However, if CLIENT terminates the Agreement for Convenience, in addition to other amounts the CLIENT may owe, CLIENT agrees to pay an early termination fee equal to the sum of monthly recurring fees for the remaining portion of the then-current term.
REPRESENTATIONS AND WARRANTIES
CLIENT represents and warrants to IDEA LAB that to the best of CLIENT’s knowledge, use of the CLIENT Content does not infringe the rights of any third party. IDEA LAB represents and warranty to CLIENT that to the best of IDEA LAB’s knowledge, the Deliverables will not violate the rights of any third parties. CLIENT shall indemnify IDEA LAB from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in Deliverables at the request of the CLIENT.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, IDEA LAB MAKES NO WARRANTIES WHATSOEVER. IDEA LAB EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
IDEA LAB retains all rights in and to all Preliminary Works. CLIENT shall return all Preliminary Works to IDEA LAB within thirty (30) days of completion of the Services. All IDEA LAB Tools are and shall remain the exclusive property of IDEA LAB. IDEA LAB grants CLIENT a nonexclusive, nontransferable, perpetual, worldwide license to use the IDEA LAB Tools solely to the extent necessary with the Final Deliverables for the Project.
Parties agree to attempt to resolve any dispute by negotiation between the parties. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties. The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Modifications to any Development or Service Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices under the Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
Rights or obligations under the Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party. The Agreement shall be governed by the law of the Republic of the Philippines. If any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings and numbering used in the Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the Agreement, and shall not have any legal effect.
Upon acceptance and signing of the proposal, all stipulations herewith constitutes the complete and exclusive Agreement between the parties regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral.