Digital Z Pty Ltd (Digital Z) is a full service digital agency providing domain registration and hosting, website design, online marketing and other digital services. This Agreement governs all services provided by Digital Z to the Customer.
1.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Agreement means this Terms of Business.
(d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Perth, Australia.
(e) Change Request means a written notice from the Customer requesting a change to the Deliverables subject to the Scope, or any additional work not specified in a Scope or otherwise previously agreed to be provided by Digital Z.
(f) Customer means any person, business or other entity form whom Digital Z is providing services, as may be specified in the Scope.
(a) Customer Data means all information, images, data, code, documents and other such materials that belong to the Customer.
(g) Customer IP means all Intellectual Property of the Customer contained in any information provided to Digital Z in the course of providing the Work.
(h) Commencement Date means the earlier of:
i The date stated as the Commencement Date in an Scope, which in default shall be the date the Scope is accepted by the Customer; or
ii The date when Digital Z first provides Services for the Customer.
(i) Confidential Information has the meaning set out in clause 12.1 but does not include information that Digital Z can establish:
i Was in the public domain at the time it was given to Digital Z;
ii Became part of the public domain, without Digital Z’s involvement in any way, after being given to Digital Z;
iii Was in Digital Z’s possession when it was given to the Digital Z, without having been acquired (directly or indirectly) from the Customer; or
iv Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(j) Deliverable means any deliverable supplied by Digital Z subject to this the Scope.
(k) Digital Z means Digital Z Pty Ltd ABN 48 620 127 433.
(l) Digital Z IP means all Intellectual Property of Digital Z incorporated in the Work.
(m) Fee means a fee charged by Digital Z for the provision of any Service.
(n) Fixed Fee Rate means any set Fee that applies to a particular set of Work.
(o) GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(p) Intellectual Property means any intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations.
(q) Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(r) New IP means any Intellectual Property generated by Digital Z for the Customer in the process of providing the Work, but excludes any updates or further development of the Proprietary Technology.
(s) Package means a tiered package of features and associated pricing for Services, as described on the site or any documentation provided to the Customer by Digital Z.
(t) Privacy Act means the Privacy Act 1988 (Cth).
(v) Proprietary Technology means the Intellectual Property Rights Digital Z holds in the underlying code, or other software product that Digital Z may make available to the Customer as part of the Services, that forms part of Digital Z IP, and includes any updates or further development made during the provision of Work.
(w) Scope means any scope, project specification, statement of work, proposal or quote prepared by Digital Z, and accepted by the Customer in writing.
(x) Services means the services provided by Digital Z subject to this Agreement.
(y) Site means the Digital Z website accessible at https://www.digitalz.com.au
(z) Special Conditions means any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.
(aa) Subscription Fee means a Fee charged by Digital Z to the Customer on a periodical basis.
(bb) Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(cc) Third Party Services means any of the Customer’s third party service account connected to and/or integrated with Digital Z’s Services.
(dd) Work means the Services and Deliverables subject to the Scope.
2 AGREEMENT AND COMMENCEMENT
2.1 The relationship between the parties shall be governed by the terms of this Agreement until terminated under the provisions of this Agreement.
2.2 In addition to any other express or implied consents, by using any Service, the Customer accepts and agrees to the terms of:
(a) This Agreement;
(b) The Scope and/or Package; and
2.3 This Agreement commences on the Commencement Date. Where the Commencement Date pre-dates the Agreement Date the Parties expressly acknowledge that the terms and conditions of this Agreement, to the extent reasonably possible, commenced on the Commencement Date, and this Agreement is the formalisation of an existing undocumented agreement between the Parties.
3.1 Digital Z may provide the following types of Services to the Customer:
(a) Domain registration;
(b) Email and communication software solutions;
(c) Cloud-based solutions;
(d) Software and web solution project management;
(e) Installation and setup of Microsoft Office, Skype and other third-party software platforms;
(g) Website design;
(h) Search Engine Optimisation (SEO);
(i) Marketing services;
(j) Performance optimisation;
(k) IT consulting services;
(l) Software migrations; and
(m) Such other services as may be agreed between the parties from time-to-time.
3.2 Any Package, proposal or quote prepared by Digital Z and accepted by the Customer (whether orally or in writing) sets out the scope of the Services and Deliverables the Customer has requested (Work). The Work will not extend beyond that scope unless Digital Z and the Customer agree in writing.
3.3 The Customer may select and purchase certain Packages, Services and Deliverables from the Digital Z Site as may be available from time-to-time.
4 THIRD PARTY SOFTWARE
4.1 Some of the Services provided by Digital Z may include the sale, registration and installation of certain third-party software solutions, including but not limited to Microsoft Office, Skype and Cloud PBX (Third Party Software).
4.2 The Customer acknowledges and agrees that:
(a) Digital Z does not provide the Third Party Software, and that the Services are separate from the actual Third Party Software features and services;
(b) The Customer is solely responsible for the Customer’s use of the Third Party Software and ensuring that:
i The Customer complies with any terms and conditions that apply to their use of that Third Party Software; and
ii The Customer pays all fees for its use of the Third Party Software (which may be incorporated in the Fees).
(c) Digital Z is not responsible for the ongoing functionality of the Third Party Software, or the Customer’s use.
5.1 Digital Z warrants that it is an independent service provider to the Customer and that it is not an employee or partner of the Customer in any way.
5.2 Digital Z will not:
(a) Hold itself out as an agent of the Customer, except to the extent necessary to carry out the Work; or
(b) Incur obligations or liabilities on behalf of the Customer unless the Customer provides written permission.
6 KEY OBLIGATIONS
6.1 Digital Z will:
(a) Ensure that the Work is complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties, to the extent reasonably possible. Digital Z will not be responsible for any delays caused by factors outside of its control;
(b) Ensure that the Work is provided in accordance with the standards outlined in the Scope;
(c) Establish and maintain clear channels of communication at all times with the Customer, and promptly answer any questions asked by the Customer;
(d) Comply with all the relevant laws and industry standards in respect of providing the Work; and
(e) Act in accordance with the Customer’s reasonable directions while providing the Work.
6.2 Where Digital Z is providing Web Hosting services to the Customer, the Customer agrees that such a Service is provided to the best of Digital Z’s abilities, and shall not be responsible to the Customer for any loss of service or Customer Data in the event of downtime.
7 THE CUSTOMER’S KEY OBLIGATIONS
7.1 The Customer will:
(a) Ensure that Digital Z has access to all the:
i Resources, personnel, electronic systems and premises required to provide the Work; and
ii All facilities and materials and information reasonably requested by Digital Z to provide the Work;
(b) Establish and maintain clear channels of communication at all times with Digital Z;
(c) Promptly provide clear, complete and timely instructions and all necessary information and documents to enable Digital Z to provide the Work effectively.
(d) The Customer must immediately advise Digital Z, if Digital Z have misunderstood the Customer or made incorrect assumptions.
(e) Promptly provide Digital Z with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.
8.1 Digital Z may engage such third-parties as are necessary to provide the Work without the Customer’s approval.
8.2 Digital Z shall be responsible for ensuring that all third-party subcontractors comply with Digital Z’s obligations under this Agreement including those of Confidentiality.
9 FEES & PAYMENT
(a) Digital Z will charge the Customer such fees as specified in the Scope or otherwise listed on the Site (Fees) which may include:
i Hourly rates;
ii A Fixed Fee Rate;
iii an upfront fee;
iv a Subscription Fee; and/or
v payment terms in accordance with a specified payment schedule.
(b) Where a Fixed Fee Rate applies the Customer agrees:
i To pay the upfront fee for Digital Z’s commitment to undertake the agreed work;
ii The Fixed Rate Fee only covers work done within the Scope;
iii The Customer must provide instructions (and all required information and other documents) to Digital Z within the timeframe(s) specified in the Scope; and
iv The Fixed Fee Rate does not cover any work done outside of (i) to (iv) (inclusive) above.
(c) Digital Z reserve the right to not undertake any work falling outside of 9.1(b)i to 9.1(b)iii above without additional payment or an agreement by the Customer to pay Digital Z at its hourly rates. Digital Z will advise the Customer as soon as reasonably practicable where work falls outside of these parameters and give the Customer an estimate of the additional costs/rates. For clarity, unless otherwise specified by Digital Z in writing, any support services ancillary to the Work shall be charged at Digital Z’s hourly rates.
(d) Where a Subscription Fee applies, the Customer agrees to pay the Subscription Fee in advance, and at such periods as specified in the Scope, which in default shall be monthly.
(e) Unless otherwise stated, fees are exclusive of GST, which is payable in addition at the prevailing rate.
9.2 Invoicing & Payment
(a) Digital Z shall provide a Tax Invoice to the Customer for any paid Work provided.
(b) The Customer agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 7 Business Days from the date of the invoice. Payment shall be via the payment portal on the Digital Z site, unless otherwise agreed between the Parties.
(c) The Customer may elect to provide a credit card or direct debit authority to the Company, which will be charged in advance for all Fees due. Without provision of a valid credit card or direct debit authority, the Customer agrees that Digital Z may terminate the Services.
9.3 Disputed Tax Invoice
(a) Should the Customer dispute any charge on a Tax Invoice, the Customer must notify Digital Z of the disputed item within 5 business days of the date of the Tax Invoice.
(b) The Customer must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
(c) Failure by the Customer to notify Digital Z of a disputed Tax Invoice within 10 business days shall be deemed acceptance by the Customer of the entire Tax Invoice.
Digital Z may charge interest at a rate of 10% per annum on overdue Tax Invoices.
9.5 Late Payment.
(a) If the Customer does not pay the full Fees as required, Digital Z may suspend all Work.
(b) If Fees are not brought out of arrears within 28 days of becoming overdue, Digital Z may cease providing the Work without notice and end this Agreement.
(c) The Customer agrees that Digital Z shall not be responsible or liable in any way for:
i Interruptions to the availability of Work in the event of (a);
ii Loss of Customer IP in the event of (b).
10 INTELLECTUAL PROPERTY
10.1 Digital Z IP
(a) The Customer acknowledges that Digital Z retains ownership of all of Digital Z IP.
(b) Digital Z grants the Customer a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the Digital Z IP to the extent that it is contained within the Work.
10.2 Customer IP
(a) Digital Z acknowledges that the Customer retains ownership of all of Customer IP.
(b) The Customer grants Digital Z a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Customer IP to the extent that it is contained within the Work.
(c) The Customer grants Digital Z a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Customer IP/Customer’s name and logo in Digital Z marketing or tender documents, unless the Customer directs Digital Z not to.
10.3 Third-Party IP
(a) Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Work, which may be attached to (without limitation) code, web-design templates, photographs; written works; visual and artistic design; video and film; and audio recordings.
(b) Digital Z shall grant to the Customer such rights as the owner of the Third-Party IP permits Digital Z to grant the Customer.
10.4 New IP
(a) New IP is owned absolutely by the Customer and vests in the Customer immediately.
(b) To the extent that Digital Z may at any time acquire any right, title or interest in the New IP, Digital Z, by this document, agrees to assign to the Customer all such rights, title and interest in the New IP.
(c) Unless otherwise agreed in writing by the parties, and notwithstanding any provision of this Agreement to the Contrary, the Customer grants Digital Z a non-exclusive, perpetual, non-transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the New IP to the extent that it is contained within the Work.
(d) The Customer may only use the New IP for the purpose for which it was created, and no work in draft or incomplete form, or that was not otherwise Approved may be used or published as finished work without Digital Z’s prior written consent.
11 THIRD PARTY SERVICES
11.1 Disclaimer of Third Party Services & Information
(a) The Customer acknowledges that the Services may be dependent on third-party services, including but not limited to:
i Third Party Software;
ii Telecommunications or internet services;
iii Hosting services; and
iv Email services.
(b) The Customer agrees that Digital Z shall not be responsible or liable in any way for interruptions to the availability of Services or loss of Customer Data due to third-party services.
11.2 Connecting Third Party Accounts
(a) Some Services provided by Digital Z may require the Customer to provide Digital Z to access to their accounts with certain Third Party Services (Facebook, Instagram, Gmail etc). The Customer may do so by:
i Providing their Third Party Services login information to the Company through their Customer Account; or
ii Allowing the Company to access their Third Party Services in accordance with its terms & conditions of service.
11.3 Ongoing Availability.
(a) The Customer agrees that the provision of some of Digital Z’s Services may be unavailable if the Third Party Service becomes unavailable, and that the Customer may lose functionality or content that is shared between the Third Party Services and Digital Z.
(b) The Customer may disconnect the connection between Digital Z and the TPS at any time.
(c) The Company cannot guarantee the efficacy or security of any Third Party Services connection.
12.1 Confidential Information means any written or verbal information that:
(a) is connected with the Customer and is obtained from the Customer or one of the Customer’s representatives;
(b) The Customer informs Digital Z that the Customer considers it confidential and/or proprietary; or
(c) is personal information within the meaning of the Privacy Act 1988 (Cth).
12.2 Digital Z will keep all Confidential Information in confidence on an ongoing basis in accordance with this Agreement.
12.3 The Confidentiality obligations owed under this Agreement shall survive termination of the Agreement.
12.4 Nothing in this Agreement shall prevent Digital Z from using the name of the Customer in any list of Customers used by Digital Z for its own promotional purposes in accordance with clause 10.2(c).
12.5 Digital Z must not:
(a) Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
(b) Disclose any of the Confidential Information except in accordance with clauses 12.6 or 12.7.
12.6 Digital Z may disclose Confidential Information to its personnel (including to third parties engaged by Digital Z to provide services in connection with the Work) if:
(a) The disclosure is required to enable Digital Z to perform its obligations or to exercise its rights under this document; and
(b) Prior to disclosure, Digital Z informs the person of Digital Z’s obligations in relation to the Confidential Information under this document;
12.7 Subject to clause 12.8, Digital Z may disclose Confidential Information that Digital Z is required to disclose by law.
12.8 If Digital Z is required to make a disclosure under clause 12.7, Digital Z must:
(a) To the extent possible, notify the Customer immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
(b) Only disclose Confidential Information to the extent necessary to comply.
12.9 The Customer and Digital Z must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
13 PRIVACY AND DIRECT MARKETING
13.4 Where the Customer provides Digital Z with the personal information of its customers, employees, contractors or other individuals, the Customer warrants that it is duly authorised to do so.
13.5 The Customer consents to Digital Z’s use of the Customer’s contact details to maintain an ongoing professional relationship with the Customer and any associated entity, including in order to provide updates, invitations and other communications Digital Z consider may interest the Customer.
14 DISPUTE RESOLUTION
14.1 If any dispute arises between the Customer and Digital Z in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(a) Includes or is accompanied by full and detailed particulars of the Dispute; and
(b) Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
14.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Customer and Digital Z must meet and seek to resolve the Dispute.
14.3 Subject to clause 14.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
14.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
14.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
15.1 This Agreement shall end when the Services and/or Deliverables have been completed by Digital Z in the reasonable opinion of the Customer, or at any time agreed by the parties in writing.
15.2 Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 14 days’ written notice.
15.3 Where a party is in breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 10 business days. Should the breach remain unremedied then the other party may terminate this contract by written notice.
15.4 Should the Customer terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay Digital Z for all active and/or delivered Projects.
16 MODIFICATION OF TERMS
16.1 The terms of this Agreement may be updated by Digital Z from time-to-time.
16.2 Where Digital Z modifies the terms, it will provide the Customer with 30 days’ written notice, and the Customer will be required to accept the modified terms in order to continue using the Services.
16.3 If the Customer does not accept the modified terms, it must notify Digital Z and terminate this Agreement.
17 LIABILITY & INDEMNITY
17.1 In no circumstances will Digital Z be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use the Services, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Digital Z knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
17.2 The Customer agrees to indemnify Digital Z for any costs, losses or damages it incurs as a result of the Customer’s breach of this Agreement, including the costs of Digital Z enforcing the terms of this Agreement against the Customer.
17.3 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Digital Z excludes all conditions and warranties that may be implied by law. To the extent permitted by law, the liability of Digital Z for breach of any implied warranty or condition that cannot be excluded is restricted to the re-supply of services or payment of the cost of re-supply of services.
18 ELECTRONIC COMMUNICATION, AMENDMENT & ASSIGNMENT
18.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
18.2 The Customer can direct notices, enquiries, complaints and so forth to Digital Z as set out in this Agreement. Digital Z will notify the Customer of a change of details from time-to-time.
18.3 Digital Z will send the Customer notices and other correspondence to the details that the Customer submits to Digital Z, or that the Customer notifies Digital Z of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
18.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
18.5 Notices must be sent to the parties’ most recent known contact details.
18.6 The Customer may not assign or otherwise create an interest in this Agreement.
18.7 Digital Z may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer.
18.8 Notices to Digital Z must be sent to:
Digital Z Pty Ltd
19.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
19.2 Prevalence. To the extent that the Scope is inconsistent with the terms of this Agreement, the terms of the Scope will prevail. To the extent that the Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail.
19.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
19.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
19.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
19.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
19.7 Governing Law. This Agreement is governed by the laws of the state of Western Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
19.8 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
19.9 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
(i) A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.
END TERMS OF SERVICE