Terms of Service

All services provided by Up and Coming Limited are subject to the following terms and conditions.

1. Definitions

1.1 “UCL” means Up and Coming Limited, its successors and assigns or any person acting on behalf of and with the authority of Up and Coming Limited.

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by UCL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Goods as agreed between UCL and the Client in accordance with clause 3 below.

1.5 “Assets” means all digital artwork, designs, code, wireframes, sitemaps and websites or mock-ups.

1.6 “Delivery” means the handover of assets, login credentials and any other data pertaining to the Goods.

2. Estimates

2.1 Estimates that have been provided in writing (email), but not accepted will only be honoured within 7 (business) days of the creation date of the estimate.

3. Price and Payment

3.1 All new projects require an initial deposit equal to 1/3 +GST of the estimated total project cost at the time of acceptance.

3.2 If the project contains a design phase, then a progress payment as set by UCL is payable on acceptance of the design phase.

3.3 The Price shall be as indicated on invoices provided by UCL to the Client in respect of the Goods supplied.

3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment will be due seven (7) days following the date of the invoice.

3.5 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to UCL an amount equal to any GST UCL must pay for any supply by UCL under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

3.6 UCL retains the right to hold all project design and development work (with the exception of content and graphics provided by the client), until payment is received in full for such items.

3.7 This forms an agreement between UCL and yourself (the client). If for any reason there is any non communication from the client or a change in circumstances occurs which results in the termination of the project, the client agrees to pay for any time spent on the project by UCL – but not yet billed – in full.

3.8 Any ad-hoc or one-off project work (for new clients) requires a 50% deposit at the time of acceptance.

4. Continuing Authority

4.1 The client acknowledges that this is a continuing authority and can only be cancelled by giving UCL 15 days prior notice in writing.

5. Default and Consequences of Default

5.1 The client accepts that payment terms in relation to UCL’s fees will be stated on the invoice, unless otherwise agreed with UCL in writing.

5.2 If payment is outstanding the client accepts that all work will cease until the account is either settled or a satisfactory agreement is in place.

5.3 If the outstanding payment relates to a service provided by UCL, that service will be suspended until the account has been paid in full.

5.4 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at UCL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

5.5 If the Client owes UCL any money the Client shall indemnify UCL from and against all costs and disbursements incurred by UCL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, UCL’s collection agency costs, and bank dishonour fees).

5.6 Further to any other rights or remedies UCL may have under this contract, if a Client has made payment to UCL by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by UCL under this clause 5 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

5.7 A re-establishment fee may also apply.

5.8 UCL does not accept cheques as a method of payment.

5.9 Monthly Subscriptions will be paid at the beginning of each month, and UCL has the right to pause or terminate our service until payment is received.

6. Meetings

6.1 The initial meeting is always free of charge, any subsequent meetings are chargeable and additional to any project estimates. If in person, the amount invoiced will include travel to and from the meeting location.

7. Web Site Design Credit

7.1 All UCL clients will have a small ‘Design (and/or Development) by Up and Coming’ text link in the footer of their website on no less than one page.

7.2 By hiring UCL to work with you on your project you are agreeing to this, and you understand that this link may not be removed without UCL’s prior consent, or unless some other arrangement has been agreed to – by both parties.

8. Email Hosting

8.1 UCL does not host email, however we highly recommend using Google Apps for domain based ([email protected]) email hosting and storage, and can provide technical support in setting this up for you.

9. Email Forwarding

9.1 It is the client’s responsibility to check & confirm all email forwarders that have been set up by UCL are working as expected.

10. Website Hosting

10.1 UCL provides managed website hosting through preferred third party service providers. You agree that your contractual relationship is solely with UCL and not with any web hosting company that we may use.

10.2 All website data including but not limited to databases, contact lists, images and customer data is stored on third party hosting servers. UCL will take all necessary precautions to ensure security and integrity of this data.

11. WordPress Software Updates

11.1 UCL takes security seriously, and as such all critical WordPress security related software updates will be undertaken automatically – irrespective of whether or not you have a support subscription. Clients are encouraged to seriously consider a support contract, to safeguard the investment they have made in their website & to qualify for priority support.

11.2 This is also the case for any theme or plugin updates. If you have taken over responsibility for your own website updates, it is advised that you do so in a timely manner – no less than monthly. Any issues arising from your failure to do so may result in support charges to rectify the situation.

12. Subcontractors

12.1 UCL reserves the right to hire subcontractors on any given project should the need arise.

12.2 All work that is subcontracted will be quality controlled by a UCL representative to ensure it meets our standard of quality.

13. Risk

13.1 Risk of damage to, or loss of the Goods passes to the Client on Delivery and the Client takes full responsibility for the Goods upon delivery.

13.2 Software and third party graphics or programs are not transferred to the client, and remain under copyright of their respective owners or publishers.

13.3 UCL reserves the right to resell custom designed assets that remain unpaid by the original client. UCL also reserves the right to resell unaccepted mock-ups or other graphics created, or code written by UCL but not in legal use by the client.

13.5 UCL reserves the right to display website’s and graphics that have been designed and/or built by UCL on this website, and in any marketing material.

14. Title to Goods (Including any incidental items supplied as part of any Services)

14.1 UCL and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid UCL all amounts owing to UCL; and

(b) the Client has met all of its other obligations to UCL.

14.2 Receipt by UCL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

14.3 It is further agreed that:

(a) until ownership of the Goods passes to the Client in accordance with clause 14.1 that the Client is only a bailee of the Goods and must return the Goods to UCL on request.

(b) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of UCL.

(c) UCL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

15. Copyright

15.1 It is hereby agreed that Copyright of all assets produced by UCL from commencement of work will reside entirely with UCL until all outstanding balances owed by the Client to UCL are paid.

15.2 Upon complete payment of all outstanding invoices, fees and other monetary obligations of the Client to UCL, copyright will automatically transfer to the Client.

16. WordPress Security, and Administrator Level Access

16.1 UCL is happy to provide administrator level access. However – it is important you are aware of the responsibilities this entails.

16.2 If the Client has provided UCL with administrator level access, then clause 16.1 does not apply. UCL may suggest security hardening of the WordPress Dashboard if required & the Client is recommended to action any necessary changes. UCL is not responsible for the security of the WordPress Dashboard if provided with administrator level access. This responsibility remains with the Client.

16.3 The Client undertakes to ensure any backups are made as required before providing administrator level access to UCL.

17. Confidentiality

UCL will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the UCL, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). UCL will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the project completion. Upon termination of this UCL services, UCL will remove UCL’s admin access and return to the Client all records, notes, documentation and other items that were used, created, or controlled by the UCL during the term of this Agreement.

18. Deadlines and Time-frames

18.1 UCL understands the importance of completing projects in a timely manner. Any delays incurred by the client will cause a subsequent and equal delay in any agreed schedules, and will impede UCL’s ability to meet any deadlines previously agreed to at the beginning of the project.

18.2 Any anticipated delays by UCL will be clearly communicated with the client and any unexpected delays will be rectified by UCL as soon as UCL is able to commence work.

19. Re-establishment Fee

19.1 Should any project be inactive for a period of 30 days (or more) due to any client related delay, a re-establishment fee of $250 + GST may apply in order to cover time spent becoming reacquainted with the requirements of the project.

19.2 This does not apply to new projects, ongoing site maintenance, updates or additions. A client related delay includes failure to pay invoices within the required time-frame.

20. Non Communication

20.1 If UCL is unable to communicate with a client on a project for an extended period of time (5 business days) – by phone or email, the project will be put on hold.

20.2 Any previously agreed to time-frames or deadlines will be null and void and will need to be reassessed upon the resumption of communication. A re-establishment fee may also apply.

21. Liability

21.1 Services purchased from UCL are provided “as is” without warranty of any kind.

21.2 In no event shall UCL be liable to the client for any direct, indirect, special, punitive, incidental, or consequential damages arising out of the use of their website, services, web hosting and/or goods provided to the client. This includes, without limitation, lost profits, business interruption, loss of data or other losses directly resulting from the use of the website, services, and/or goods provided to the client. The entire risk as to the quality and performance of the web design and/or development work rests with the client.

21.3 UCL is not liable for any loss, damage or critical errors in the Client’s failure to comply with 16.3 stated in these terms.

22. Privacy Act 1993

22.1 The Client authorises  UCL or UCL’s agent to:

(a) access, collect, retain and use any information about the Client;

(1) including any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or

(2) for the purpose of marketing products and services to the Client.

(b) disclose information about the Client, whether collected by UCL from the Client directly or obtained by UCL from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

22.2 Where the Client is an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.

22.3 The Client shall have the right to request UCL for a copy of the information about the Client retained by UCL and the right to request UCL to correct any incorrect information about the Client held by UCL.

23. Change in Control

23.1 UCL reserves the right to change or update these terms at any time without prior notice. If you would like to be notified of updates or changes to these terms, please check the box below.

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