Terms & Conditions

1. General

1.1 Definitions

TekZilla ("TekZilla", "we", "us", "our"): TekZilla Pty Ltd, including its authorised staff, employees, and contractors.
Client ("client", "you", "your"): The client entity entering this agreement, including your staff and contractors.
Agreement: These Terms and Conditions together with any signed Proposal or subscribed service.
Proposal: The signed or digitally verified and accepted document outlining the proposed services and terms.
Package: An agreed service or product provided at an agreed monthly fee.
Consultant: A TekZilla team member assigned to perform the work under this Agreement.
Cloud Service Provider: A third-party provider used by TekZilla to deliver cloud hosting services, such as Amazon Web Services, Microsoft Azure, or Google Cloud Platform.
Cloud Service Provider Environment: The Client's account with the Cloud Service Provider, including all provisioned resources but excluding the Client Application hosted therein.
Client Application: The software or application owned by the Client and hosted within the Cloud Service Provider Environment.
Client Portal: The online portal provided on the TekZilla website where you can log, track, and manage service requests.

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.

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

Any documents or data provided to you that are not owned by or produced by you are considered confidential to us and should be treated as such.

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: https://www.tekzilla.com.au/billing-policy/

All figures unless otherwise specified exclude GST.

1.6.2 Rate Reviews

All rates (+ GST) at the start of each financial year will be reviewed and if outside the limitations of any minimum contract term may be adjusted for inflation with 30 days written notice.

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 Packages, Milestone Projects, and Ad-Hoc Work

Package invoices are sent on the 24th of each month for the following month in advance. Any additional days/hours used in the month are invoiced in arrears on the first business day of the next month.

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.

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 at the annual rate of 15% or the 90-day bank-accepted bill rate published by the Reserve Bank of Australia, whichever is greater.

If you have an issue with an item on an invoice, you agree to notify [email protected] 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 TekZilla 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.

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, TekZilla 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 third party tools, 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, application or system must be provided by you via email or through the client portal. 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.

1.7.4 Acknowledgement

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

1.8 Warranties

1.8.1 No Warranty

No warranty is provided for Packages, Milestone Projects, and Ad-Hoc Work.

1.8.2 Limitation of Liability for 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 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.

1.8.5 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.

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 fulfill the contract we may from time to time use specialist subcontractors who work as part of our team.

1.9.8 Personal Guarantee

In the event that You are an entity with two (2) or fewer directors, You agree to provide a personal guarantee as a condition of entering into this Agreement. The personal guarantee shall be in a form and substance satisfactory to us, and shall cover all your obligations and liabilities arising under or in connection with this Agreement.

1.10 Client Portal

1.10.1 Usage Requirements

All service requests must be logged and managed through the Client Portal to ensure proper tracking and processing.

1.10.2 Disclaimer

To the extent permitted by law, we disclaim all liability for any non-functioning, errors, downtime, or other issues with the Client Portal. Use of the Client Portal is at your own risk, and we make no warranties regarding its availability or performance.

1.10.3 Charges

Any requests submitted via the Client Portal will incur charges for the work carried out in response to those requests, in accordance with our Billing Policy and the terms of this Agreement.

1.10.4 Binding Nature

Any actions, approvals, or agreements made through the Client Portal are considered binding and form part of this Agreement.

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 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 a 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 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, one month prior to the month the cancellation takes effect. After the cancellation any outstanding fees will be invoiced and are payable immediatly.

We reseve the right to cancel any services or access to our systems at any point according to our terms of service

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.

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.

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.

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

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.

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.

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.

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.

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.

The Cloud Service Provider account will be transferred to you following termination of the TekZilla Cloud Services agreement. You agree that the Cloud Service Provider will continue to charge you after the termination of the Cloud Services Agreement.