TERMS OF SERVICE 

Welcome to The Code Penguin!

These terms and conditions outline the rules and regulations for the use of The Code Penguin Pty Ltd’s Website, located at https://thecodepenguin.com.

The Code Penguin seeks to ensure that all material on this site is accurate and current. However, The Code Penguin is not responsible for the content of any external websites which may be linked to from this site.

ACCEPTANCE
  • It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
  • Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
  • For custom projects outside the packages offered on our website, The Code Penguin may enter into a specific written agreement with you. The details of that agreement will determine the nature of representations of that particular agreement relating to payments, deliverables etc.
CHARGES
  • Charges for services to be provided by The Code Penguin are defined in the project quotation that the Client receives via e-mail. Quotations are valid for a period of 30 days. The Code Penguin reserves the right to alter the quotation after expiry of the 30 days.
  • Unless agreed otherwise with the Client, all website design services require an advance payment of a minimum of forty (40) percent of the project’s total for The Code Penguin to begin work on the project.
  • The Code Penguin expects payment by bank to bank transfer, credit card, PayPal or any other method provided by The Code Penguin within 15 days of the date on the invoice.
  • The Code Penguin reserves the right to offer promotions and discounts on our packages. Any orders made prior to the discount period will not be subject to a discount or promotion.
  • The Code Penguin reserves the right to alter prices at any time without notice. If a client has commissioned any services from The Code Penguin prior to a change in prices, that commission will not be subject to any increase, but any subsequent commission may be subject to an increase.
LOGO + STATIONERY DESIGN
  • The Code Penguin does not offer or promise any form of publishing. Any logo or stationery designed by The Code Penguin will have to be printed by the client via a third party.
CLIENT REVIEW
  • The Code Penguin will initially place the client’s website on one of The Code Penguin’s demonstration servers during development in order that the client may view and comment upon the website’s progress. When both The Code Penguin and the client agree that the website meets the criteria agreed during the commissioning process, The Code Penguin will invoice the client for the full amount due for the commission. Upon receipt of payment, The Code Penguin will publish the website on the client’s server, or on our live hosting in case client purchases hosting from The Code Penguin.
  • The Code Penguin will provide the Client with an opportunity to review the appearance and content of the website during the design phase and once the overall website development is completed. At the completion of the project, such materials will be deemed to be accepted and approved unless the Client notifies The Code Penguin otherwise within seven days of the date the materials are made available to the Client.
RIGHT OF RESERVATION
  • We reserve the right to refuse to construct a web site which we may judge as unfit due to content or otherwise. This includes, but is not limited to, sites which infringe copyright, sites containing illegal material, sites which promote hatred towards persons belonging to any ethnic group, religion or sexual orientation.
TURN-AROUND TIME AND FAILURE TO PROVIDE REQUIRED WEBSITE CONTENT:
  • The Code Penguin cannot always guarantee to start work immediately on a commission but will arrange a date with the client as to when work can commence.
  • Turnaround is discussed at the time of the start of the project.
  • All time estimates are based on our understanding of your requirements. Any changes to the functionality may result in the increase in the turnaround time.
  • Turnaround time may increase if custom features are required by the client
  • To remain efficient we must ensure that work we have programmed is carried out at the scheduled time. This is why we ask that you provide all the required information in advance. If, during the website development process, the client does not supply the content required in order to complete the commission within a reasonable amount of time, The Code Penguin may temporarily put the project on hold.
  • NOTE: Text content should be delivered as a Microsoft Word, email (or similar) document with the pages in the supplied document representing the content of the relevant pages on your website. These pages should have the same titles as the agreed website pages. Contact usif you need clarification on this.
PAYMENT
  • An initial deposit of at least 40% needs to be paid by the client in order for The Code Penguin to begin work on the client’s website.
  • Remaining invoice will be provided by The Code Penguin upon completion but before publishing the live website.
ADDITIONAL EXPENSES
  • An initial deposit of at least 40% needs to be paid by the client in order for The Code Penguin to begin work on the client’s website.
  • Remaining invoice will be provided by The Code Penguin upon completion but before publishing the live website.
WEB BROWSERS
  • The Code Penguin makes every effort to ensure websites are designed to be viewed by the majority of visitors. Websites are designed to work with the most popular current browsers (e.g. Firefox, Microsoft Edge, Google Chrome, etc.).
  • The Code Penguin cannot accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website have been designed and handed over to the Client. As such, The Code Penguin reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software.
DEFAULT

Accounts unpaid thirty (30) days after the date of invoice will be considered in default. If the Client in default maintains any information or files on The Code Penguin’s Web space, The Code Penguin will, at its discretion, remove all such material from its web space. The Code Penguin is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account.

TERMINATION
  • If at any point during the development phase the client wishes to terminate the services of The Code Penguin then they may do so. Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Telephone requests for termination of services will not be honoured until and unless confirmed in writing.
  • The initial deposit made to The Code Penguin to start the website development process will not be refunded.
INDEMNITY
  • All The Code Penguin services may be used for lawful purposes only. You agree to indemnify and hold The Code Penguin harmless from any claims resulting from your use of our service that damages you or any other party.
  • The Code Penguin will not be liable for any changes made to the website by the client even if under the maintenance package.
  • The Code Penguin will not be held liable for any external malicious attacks on the client’s website after project completion. However, if the client is under the maintenance package, The Code Penguin will do its best to recover and protect the client’s website to the best of its abilities while remaining under the restrictions of the law.  
COPYRIGHT/INTELLECTUAL PROPERTY
  • The Client retains the copyright to data, files and graphic logos provided by the Client, and grants The Code Penguin the rights to publish and use such material.
  • The Client must obtain permission and rights to use any information or files that are copyrighted by a third party. The Client is further responsible for granting The Code Penguin permission and rights for use of the same and agrees to indemnify and hold harmless The Code Penguin from any and all claims resulting from the Client’s negligence or inability to obtain proper copyright permissions. A contract for website design and/or placement shall be regarded as a guarantee by the Client to The Code Penguin that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested.
  • All material, both text and images, supplied by the client and used in the construction of the client’s web site, will remain the client’s property. All such material will be assumed to be the property of the client and free to use without fear of breach of copyright laws.
  • The copyright for all material provided by The Code Penguin such as HTML code, graphics, photographs and text, will remain the property of The Code Penguin until such time as payment has been made in full.
  • Both The Code Penguin and the client will obey with the copyright policies of third party assets supplied by either The Code Penguin or the client such as images, plugins, themes etc.
  • The Code Penguin holds all the rights to the “client education material” provided to the client by us. The client is not allowed to reproduce or republish any of the content provided to the client for the purposes of client education. 
DESIGN CREDIT
  • A link to The Code Penguin will appear in either small type or by a small graphic at the bottom of the Client’s website. If a client requests that the design credit be removed, a nominal fee of 10% of the total development charges will be applied. When total development charges are less than AUD 1500, a fixed fee of AUD 400 will be applied. The Client also agrees that the website developed for the Client may be presented in The Code Penguin’s portfolio.
ACCESS REQUIREMENTS
  • If the Client’s website is to be installed on a third-party server, The Code Penguin must be granted temporary read/write access to the Client’s storage directories which must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.
POST-PLACEMENT ALTERATIONS
  • The Code Penguin cannot accept responsibility for any alterations caused by a third party occurring to the Client’s pages once installed. Such alterations include, but are not limited to additions, modifications or deletions.
  • In case of a large-scale malicious attack on our servers, The Code Penguin does not guarantee the security of the client’s data. 
DOMAIN NAMES
  • The Code Penguin may purchase domain names on behalf of the Client. Payment and renewal of those domain names is the responsibility of the Client. The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of The Code Penguin. The Client should keep a record of the due dates for payment to ensure that payment is received in good time.
GENERAL

These Terms and Conditions supersede all previous representations, understandings or agreements. Initial payment/deposit is an acceptance of our terms and conditions.

GOVERNING LAW

This Agreement shall be governed by Australian Law.

LIABILITY

The Code Penguin hereby excludes itself, its Employees and or Agents from all and any liability from:

  • Loss or damage caused by any inaccuracy;
  • Loss or damage caused by omission;
  • Loss or damage caused by delay or error, whether the result of negligence or other cause in the production of the web site;
  • Loss or damage to clients’ artwork/photos, supplied for the site. Immaterial whether the loss or damage results from negligence or otherwise.

The entire liability of The Code Penguin to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.

SEVERABILITY

In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid cluase.

SEO
  • The Code Penguin accepts no responsibility nor liability to the Client for the actual rankings achieved or how such rankings may vary over time. Search engines are known to change their algorithms and in such doing rankings and traffic may fluctuate.
  • The Code Penguin will however ensure the client of the site’s ranking or increase in ranking on google developers before and after the SEO has been done on client’s website. 
DATA AND BACKUP
  • The Code Penguin will only be liable to keep the client’s website data till 15 days after the payment of the final invoice for website design process (unless the client subscribes to our maintenance and backup packages). After which the client will be liable for the safekeeping of their data. 
  • Backups are performed weekly or monthly depending on the package purchased by the client. In case the client requests the backup of the website to be uploaded, The Code Penguin will not be held liable for the loss of data uploaded to the client’s site or email server since the date of the last scheduled backup

 

HOSTING
  • The Code Penguin’s hosting servers may experience downtime due to maintenance or technical issues.
  • The Code Penguin’s servers are located in The United States and in Australia and therefore are subject to the regional laws and policies.
  • The Code Penguin additionally uses reseller hosting and therefore is subject to external terms of service which extends to the client. Click here to read the terms of service for hosting.
  • We offer different packages for hosting; the default hosting plan includes monthly payment. All plans must be paid in advance.
  • We use automated system for billing, any delay in payment or failure to pay may suspend your website hosting until the payment is made.
  • Delay or failure to pay will also affect all email accounts hosted with us.
  • It is the client’s responsibility to protect their email passwords and details. The Code Penguin will not be responsible for any loss of information on the client’s end.
  • Cancellation/Termination:
    The Client may terminate hosting at any point. Hosting payment for the ongoing month is nonrefundable.
  • The Code Penguin will provide all the data and access required to the client if they decide to transfer the hosting. This will not incur any additional charges.
  • The Code Penguin is not responsible for shifting the hosting to the client’s new server. All access will be provided to the client so they may to it themselves or get a third-party provider.
  • Failure to pay for two consecutive months without prior notice to us will lead in the deletion of all files from our servers including email accounts.

The Code Penguin holds the right to change these terms and conditions at any time.

By agreeing to these terms and conditions your statutory rights are not affected.

Terms and conditions contained in the Terms and Conditions.