Terms & Conditions of Service
These terms and conditions set out the set out the agreement between Ucidity and you, the Client. By accepting any quotation provided by Ucidity, you agree that you have read and agreed to these terms and conditions.
- Client means you, being the party listed as such in Schedule 1 of your the Service Agreement.
- Ucidity means Kasshill Pty Ltd, trading as Ucidity (ABN 53 639 182 808).
- Deliverables means the end products and/or services provided to you by Ucidity, in the form or media described in the Quotation (or as otherwise agreed between you and Ucidity).
- Draft means a preliminary design, mock-up or other item to be provided to you for approval prior to the preparation and provision of a Deliverable.
- Estimate means the estimated fees to provide the Services, as set out in the Quotation.
- Fees means the costs charged by Ucidity to provide the Services and/or Deliverables.
- Milestone means the dates and associated actions set out in Schedule 1.
- Project means the scope and purpose of your identified usage of the Deliverables and/or Services.
- Quotation means the quotation provided to you in writing by Ucidity.
- Services means the services provided by Ucidity as described in the Quotation.
Ucidity will provide a quotation to you outlining the services it will provide to you, the timeframe within which those services can be completed and an Estimate. The Estimate stated in the Quotation is an estimate only, and you acknowledge that upon completion of the Services the Fees may be less or more than the Estimate.
Ucidity will advise you as soon as reasonably practicable when it is clear to Ucidity that the Fees will exceed the Estimate by 20%.
The Estimate is based on a maximum of four (4) revisions per item/Deliverable supplied to you. Any revisions over and above this number will result in additional costs, charged at the hourly rates set out in the Schedule.
3. Provision of the Services:
You agree that you will advise Ucidity in writing of any deadlines for the completion of the Services or the provision of the Deliverables to you prior to Ucidity commencing the Services. Ucidity will use its best endeavours to meet any such deadline(s) if it is aware of the deadline(s) prior to commencing the Services, but will not be liable for any delay caused by factors beyond its control (including, but not limited to, illness, injury, server failure, act of God and industrial action).
Where milestones are stated in the Schedule, Ucidity agrees to use its best endeavours to meet those Milestones. If it appears that Ucidity will not be able to meet a Milestone, Ucidity will advise you as soon as possible of this fact, and will advise the date by which it believes it will be able to provide the relevant Draft or Deliverable.
If, after commencement of the Services, you advise Ucidity that a Draft or Deliverable is required either earlier than you had previously advised, or earlier than the relevant Milestone, then Ucidity reserves the right to charge a premium of up to 20% of the hourly rates set out in the Schedule in consideration of meeting the earlier deadline.
Ucidity is not liable for any delays resulting from: (a) changes required by you to the Project, the Services, or the Deliverables; (b) delays in you responding to enquiries from Ucidity relating to the Project, the Services, or the Deliverables; or (c) delays by you in approving Drafts, mock-ups, or any revisions of the Deliverables.
3.2 Drafts and Deliverables
Ucidity will provide you with initial, low-resolution designs (a “Draft” or “Drafts”) for your approval throughout the Project. You agree that you will either approve or reject any such Draft in writing, within 3 business days. If you reject a Draft, you agree that you will also provide Ucidity with the reasons for any such rejection, and clear instructions as to your proposed amendments to the Draft in order to bring it to your satisfaction. If you do not either approve or reject a Draft in writing within 3 business days, then the Draft is deemed to have been approved and Ucidity will proceed with further provision of the Services in relation to that Draft, including but not limited to the creation of the Deliverables. Any amendments to the Draft(s) after an approval (being either approval in writing, or a deemed approval under this clause) will result in additional cost to you, charged at the hourly rates set out in the Schedule.
Ucidity will not charge for any revisions to the Deliverables resulting directly from an error on the part of Ucidity.
Any revisions requested by you after Ucidity has provided the Deliverables will be charged at a premium of up to 10%, to be determined at the sole discretion of Ucidity.
Ucidity is not liable for any damage to physical items in transit to you, and you are responsible for obtaining insurance for any such items if you wish.
Ucidity reserves the right to request a deposit prior to commencing the Services, with such deposit not to exceed 50% of the Estimate. If such a deposit is requested, you agree that you have accepted these Terms and Conditions upon payment of that deposit.
If a deposit is not requested by Ucidity, you acknowledge and agree that Ucidity has provided you with these Terms and Conditions prior to commencing the Services, and by instructing Ucidity to commence the Services you have accepted these Terms and Conditions.
If Milestones are stated in the Schedule, then any payments are due on the date set out in the Schedule. If there are no Milestones set out in the Schedule, Ucidity will invoice you monthly for all costs associated with the Project for the previous month. Payment is due within 7 days of issue of the invoice to you.
You agree that, in addition to the Fees, you will pay any expenses associated with providing the Services, such as costs of commissioning images or subcontracting talent, run-time license costs, research, postage and delivery, photocopying, and storage media expenses, procurement of stock images, printing, and pre-approved travel costs associated with the Project.
Ownership of all rights, including but not limited to intellectual property rights (including copyright), in any Deliverables, images, written content, designs or any other materials (in either electronic or physical form) provided to you by Ucidity remain the property of Ucidity until full payment of the Fees.
Interest will be charged on unpaid invoiced amounts at a rate of 10% per annum, calculated daily, and you acknowledge that this amount is a true reflection of Ucidity’s losses as a result of non-payment. The interest payable under this clause will be added to any subsequent invoice, and Ucidity retains all copyright and other intellectual rights in Drafts, Deliverables or any other materials supplied to you until any such interest is paid in full.
In any case where Project Management, including email administration, internal briefing and external client meetings exceeds 20% of the over-all project scope, Ucidity will provide 7 days notice prior to charging additional fees to the Client on an hourly basis from the initial notice date.
If Ucidity is required to commence any proceedings or engage a third party debt recovery to recover unpaid Fees, you are also liable for any associated costs.
5. Intellectual Property:
5.1 Ucidity Warranties
Ucidity warrants and represents that, to the best of its knowledge, the materials provided to you during the course of the Project are original and either: (a) have not been previously published; or (b) consent to use the materials has been obtained for use on the Project.
This warranty does not extend to any uses that you or others may make of the materials provided by Ucidity which may infringe on the rights of others.
5.2 Warranty and Indemnity Provided by You
You warrant that any materials you provide to Ucidity in order for it to provide the Services (including, but not limited to, images, written material, copy, electronic files, and computer code), is either original, or you have all necessary rights to provide those materials to Ucidity and to use that material for the purpose of the Project.
You agree to indemnify Ucidity, and to hold Ucidity harmless, against any action, claim or proceedings, or for any loss, cost, expense or damage resulting from a breach of the warranty given by you under this clause.
5.3 Use of Deliverables and other materials by Ucidity
Ucidity reserves the right to use the Deliverables and any other materials prepared by Ucidity in the course of providing the Services, or for the Project, for the purposes of its own marketing and promotion, including in any printed company portfolio or on its website. This may include use of your logo.
If you don’t wish for Ucidity to exercise its rights under this clause, you must advise Ucidity before commencement of the Services, and Ucidity will negotiate in good faith with you in relation as to the limitations to be placed on such use, or (at the sole discretion of Ucidity) a potential increase in the Estimate in consideration of its agreement to not use the materials.
In the course of providing the Services, Ucidity may be provided with materials and information that is confidential to you. Ucidity agrees to keep such information confidential, and only disclose it in the following circumstances:
- when the disclosure is to related bodies corporate, officers, employees, consultants, professional advisers, bankers, financial advisers or financiers and those persons undertake to keep confidential any information so disclosed;
- where required by law, or pursuant to a court order; or
- where the confidential information is already in the public domain, other than through a breach of this clause by Ucidity.
If you provide any confidential information to Ucidity, you agree to indemnify Ucidity against:
- any action, claim or any proceedings against Ucidity; or
- any cost, loss, damage or expense incurred by Ucidity (including, but not limited to any associated legal costs),
if it should be found that such information was confidential to another party.
7. Cancellation, Refund Policy, and Limitation of Liability:
You may cancel the Project at any time and for any reason. However, if you do cancel the Services, you must pay Ucidity:
- for all hours worked in relation to the Project, in accordance with the hourly rates set out in the Schedule (in which case, Ucidity will provide you with evidence of any hours worked) including for hours worked preparing any project scope, strategic planning, market analysis or review in anticipation of the Project;
- any other costs and expenses incurred by Ucidity in the course of providing the Services, including costs to engage any third-party providers; and
- any unpaid invoices, including (if applicable) any interest payable in accordance with clause 4.
In the event of a cancellation for any reason, Ucidity retains ownership of all rights (including but not limited to copyright) in any original artwork, design or written material prepared by Ucidity in the course of the Project (including Drafts and/or Deliverables). In the event of cancellation, you acknowledge and agree that you are unable to use any artwork, design, written material, Draft or Deliverable for any purpose without the written consent of Ucidity.
Notwithstanding any other clause in these Terms and Conditions, and to the extent permitted by law, the maximum liability of Ucidity to you in relation to the Project or the provision of the Services is the greater of:
- rectification of any defects or errors in the Drafts, Deliverables or any other materials supplied by Ucidity;
- re-supply of the Services; or
- refund of any payments made by you to Ucidity.
To the extent permitted by law, the decision as to whether to refund any or all of the Fees to you is at the sole discretion of Ucidity.
Notwithstanding any other clause in these Terms and Conditions, Ucidity will not be liable for any special, indirect or consequential losses incurred in any way in connection with the Services or the Project, regardless of whether such failure was caused by intentional or negligent acts or omissions of Ucidity or a third party engaged by Ucidity.
8. Dispute Resolution:
In the event of a dispute about anything arising from these Terms and Conditions, the Fees, the provision of the Services or the provision of the Deliverables, then before commencing any proceedings in a court of competent jurisdiction both you and Ucidity agree to negotiate in good faith to resolve the dispute for a period of 28 days.
If the dispute cannot be resolved within that 28-day period, then both you and Ucidity agree to participate in mediation in accordance with the Mediation Guidelines of the Law Society of New South Wales and the nominee of the President of the Law Society of New South Wales will select the mediator and determine the mediator’s compensation.
The following rules apply in interpreting these Terms and Conditions, except where the context makes it clear that a rule is not intended to apply:
- Headings are for convenience only, and do not affect interpretation;
- A singular word includes the plural, and vice versa;
- If a word is defined, another part of speech for that word has a corresponding meaning;
- If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing;
- If the day on or by which a person must do something under this document is a Saturday, Sunday or public holiday, the person must do it on or by the next day that is not a a Saturday, Sunday or public holiday; and
- This document is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this document to protect itself.
All communications and notices in relation to the Services or the Project will be between the Client Representative and the Ucidity Representative, and the preferred form of communication will be email via the respective email addresses for stated in the Schedule.
9.3 Governing Law
This document is governed by the laws of the State of New South Wales, and both you and Ucidity submit to the jurisdiction of the courts of New South Wales
Website Terms & Conditions of Use
About the Website
- Welcome to ucidity.com.au (the ‘Website’). The Website Graphic Design, Webiste Development, Marketing, CRM Implementation, Outbound Sales (the ‘Services’).
- The Website is operated by Kasshill Pty Ltd(ABN 53 639 182 808). Access to and use of the Website, or any of its associated Products or Services, is provided by Kasshill Pty Ltd. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
- Kasshill Pty Ltd reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Kasshill Pty Ltd updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
Acceptance of the Terms
You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Kasshill Pty Ltd in the user interface.
Registration to use the Services
- In order to access the Services, you must first register for an account through the Website (the ‘Account’).
- As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
- Email address
- Preferred username
- Telephone number
- You warrant that any information you give to Kasshill Pty Ltd in the course of completing the registration process will always be accurate, correct and up to date.
- Once you have completed the registration process, you will be a registered member of the Website (‘Member’) and agree to be bound by the Terms.
- You may not use the Services and may not accept the Terms if:
- you are not of legal age to form a binding contract with Kasshill Pty Ltd; or
- you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
Your obligations as a Member
- As a Member, you agree to comply with the following:
- you will use the Services only for purposes that are permitted by:
- the Terms; and
- any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
- you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
- any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Kasshill Pty Ltd of any unauthorised use of your password or email address or any breach of security of which you have become aware;
- access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Kasshill Pty Ltd providing the Services;
- you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Kasshill Pty Ltd;
- you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
- you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by Kasshill Pty Ltd for any illegal or unauthorised use of the Website; and
- you acknowledge and agree that any automated use of the Website or its Services is prohibited.
- Where the option is given to you, you may make payment for the Services (the ‘ Services Fee’) by way of:
- Electronic funds transfer (‘EFT’) into our nominated bank account
- Credit Card Payment (‘Credit Card’)
- PayPal (‘PayPal’)
- Cash (‘Cash’)
- BizPay or Pecuret
- All payments made in the course of your use of the Services are made using Stripe. In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Stripe terms and conditions which are available on their website.
- You acknowledge and agree that where a request for the payment of the Services Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Services Fee.
- You agree and acknowledge that Kasshill Pty Ltd can vary the Services Fee at any time.
- Kasshill Pty Ltd will only provide you with a refund of the Services Fee in the event they are unable to continue to provide the Services or if the manager of Kasshill Pty Ltd makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances (the ‘Refund’).
Copyright and Intellectual Property
- The Website, the Services and all of the related products of Kasshill Pty Ltd are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Kasshill Pty Ltd or its contributors.
- All trademarks, service marks and trade names are owned, registered and/or licensed by Kasshill Pty Ltd, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
- use the Website pursuant to the Terms;
- copy and store the Website and the material contained in the Website in your device’s cache memory; and
- print pages from the Website for your own personal and non-commercial use.
- Kasshill Pty Ltd does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Kasshill Pty Ltd.
- Kasshill Pty Ltd retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
- business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
- a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
- a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
- You may not, without the prior written permission of Kasshill Pty Ltd and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
- Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
- Subject to this clause, and to the extent permitted by law:
- all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
- Kasshill Pty Ltd will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
- Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Kasshill Pty Ltd make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Kasshill Pty Ltd) referred to on the Website, includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
- failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
- the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
- costs incurred as a result of you using the Website, the Services or any of the products of Kasshill Pty Ltd; and
- the Services or operation in respect to links which are provided for your convenience.
Limitation of liability
- Kasshill Pty Ltd’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
- You expressly understand and agree that Kasshill Pty Ltd, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Termination of Contract
- The Terms will continue to apply until terminated by either you or by Kasshill Pty Ltd as set out below.
- If you want to terminate the Terms, you may do so by:
- providing Kasshill Pty Ltd with 30 days’ notice of your intention to terminate; and
- closing your accounts for all of the services which you use, where Kasshill Pty Ltd has made this option available to you.
- Your notice should be sent, in writing, to Kasshill Pty Ltd via the ‘Contact Us’ link on our homepage.
- Kasshill Pty Ltd may at any time, terminate the Terms with you if:
- you have breached any provision of the Terms or intend to breach any provision;
- Kasshill Pty Ltd is required to do so by law;
- the provision of the Services to you by Kasshill Pty Ltd is, in the opinion of Kasshill Pty Ltd, no longer commercially viable.
- Subject to local applicable laws, Kasshill Pty Ltd reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Kasshill Pty Ltd’s name or reputation or violates the rights of those of another party.
- You agree to indemnify Kasshill Pty Ltd, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
- all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
- any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or any breach of the Terms.
- Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
- Notice: A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
- Resolution: On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
- Within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- If for any reason whatsoever, 7 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the NSW Civil and Administrative Tribunal (NCAT) or his or her nominee;
- The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
- The mediation will be held in Level 14/66 Goulburn St, Sydney NSW 2000, Australia.
- All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
- Termination of Mediation:
- If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
- Venue and Jurisdiction
- The Services offered by Kasshill Pty Ltd is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
- Governing Law
- The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
- Independent Legal Advice
- Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
- If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.