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Terms and Conditions of Firefly Digital Marketing Limited for provision of Services

This document contains the terms and conditions which form the basis on which Firefly Digital Marketing Limited (“Firefly”) will provide the Services to the Client.

1. DEFINITIONS

“Approval” includes authority given by the Client by letter, fax or email or by signing or initialing documents such as copy, artwork, corrections, scripts, estimates or any Proposal and “Approved” shall be interpreted accordingly.

“Bought in Services” includes those required for image creation, digital technology, photography, production or post production, hosting, insurance, consultative, planning, technical, advisory, legal, research and similar services or equipment which are to be procured, hired, managed or purchased by Firefly for the benefit of the Client to make the Work or provide the Services.

“Client” the person identified as the Client in the Project Summary.

“Client Materials” ” any materials provided by the Client and used in the provision of the Services including but not limited to Web Page content, other template content, software, copy, imagery, video and branding elements.

“Completion” delivery of the Work to the Client in accordance with the Project Summary.

“Content” any content that is or is capable of incorporation into the Website.

“Contract” the agreement between the parties for Firefly to provide the Services and deliver the Work as set out in the Project Summary subject to these terms and conditions.

“Corporate Identity” the name, style, logo, trade mark or other form of identity by which the Client is known and/or wishes to be identified.

“Day” eight working hours.

“Fee” the fee or relevant portion of the total fee payable for the provision of the Services on each Project.

“Firefly Pre-existing Materials” any materials and information provided by Firefly relating to the Services which existed prior to the commencement of the Contract including but not limited to work files, source codes, data and computer programs.

“Inappropriate Content” any material on the Website which in Firefly’s reasonable opinion infringes applicable laws, regulations or third party rights (such as material which is obscene, indecent, offensive, defamatory, threatening or in breach of any third party Intellectual Property Rights.

“Intellectual Property Rights” all intellectual property rights wherever in the world rising, whether registered or unregistered (and including any application) including copyright, know how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, design rights, semi-conductor topography rights, database rights.

“Project” the Services and activities as summarised in a Project Summary.

“Proposal” the proposal prepared by Firefly outlining the potential specification for the Services to be delivered by Firefly and the proposed costs to be paid for by the Client.

“Project Summary” the document which is based on the Proposal and agreed between and signed by the Client and Firefly summarising the details relevant to the Project including the timeline for delivery of the Services.

“Services” the provision by Firefly of the services set out in the Project Summary.

“Social Media” including but not limited to YouTube, Google+, Twitter and Facebook.

“Website” the website of the Client to which Firefly is contributing the Web Pages and (where agreed as part of the Services) also hosting.

“Web Pages” the final static front-end HTML/PHP web pages that will form part of the Website which are to be produced by Firefly as part of the Services.

“Work” the output delivered by Firefly as a result of the Services summarised in the Project Summary (for example the Web Pages or HTML e-mails) Social Media pages and web applications but excluding Adobe Photoshop source design files and Firefly Pre-existing Materials.

“Work Content” shall include website files, documents, images, designs, computer files, video or other artwork used as part of the creative process for the Work and in which Intellectual Property Rights may exist but excluding Adobe Photoshop source design files and Firefly Pre-existing Materials.

2. FIREFLY’S CONTRACT AND SERVICES

2.1 In consideration of the relevant Fee, Firefly (it agents, subcontractors, consultants and employees) will provide the Services for the Project in accordance with the Project Summary and shall be regarded as acting as principal in all respects unless otherwise agreed in writing. Unless specifically varied by special conditions in any Project Summary these terms and conditions shall apply to all dealings between Firefly and the Client to the exclusion of all others including those that might be implied by law, custom and practice or prior dealings between the parties.

2.2 All Proposals or estimates are valid for fourteen days (14) days from their date. The Contract shall come into existence on the signature of the Project Summary by both parties or the date when Firefly commences work following Approval by the Client, whichever is the first to occur.

2.2 If Firefly has been asked by the Client to use Client Materials, a statement of specified facts or the Corporate Identity in the Work which is to be the product of the Services, that use will be subject to the warranty and indemnity given by the Client in paragraphs 3.6 and 7 below and, relying upon those, Firefly shall incorporate the relevant Client Materials or facts or use the Corporate Identity as instructed by the Client.

2.3 All Intellectual Property Rights and other rights in Works and Work Content created by Firefly belongs to Firefly. On receipt of payment of the Fee in full ownership of the Work and Work Content shall pass to the Client to the extent that Work and Work Content has been created by Firefly; the Client recognising that third parties retain ownership in elements of the Work and the Work Content. The Client acknowledges that Firefly provides outputted final web files only and that the working Adobe Photoshop source design files will be retained by Firefly at all times. Firefly reserves the right to use any of the Works or Work Content it has created for promotional purposes.

2.4 Firefly shall be responsible for testing all front-end code prior to Completion. If the Services include provision of Web Pages then following Approval by the Client of the Web Pages and the code, any additional changes or upgrades required by the Client shall be considered to be outside the original Project Summary and chargeable in accordance with clause 5.3.

2.5 Following Completion Firefly shall not be responsible or liable for any problems arising, downtime or damage done to the Work, the Website or the Web Pages caused by updates, integration, amendments or modifications to the supplied code or the Website by the Client or third parties.

2.6 The Client acknowledges that browser compatibility is based on the current release/version as at the date of the Project Summary. Future upgrades or browsers and code frameworks may result in unknown incompatibilities for which Firefly shall not be responsible or liable.

3. THE CLIENT'S OBLIGATIONS

3.1 The Client shall provide Firefly with comprehensive response to the Proposal and instructions to enable the Project Summary to be Approved and throughout the Project shall promptly notify its Approval to Firefly when appropriate or take such action as shall be identified as the Client’s responsibility in the Project Summary.

3.2 If the Services include delivering of Web Pages it is the Client’s responsibility to arrange for all appropriate policies to appear on the Website as it considers fit including but not limited to the terms of use of the Website and data protection, cookie and privacy policies, Website terms and conditions and all appropriate disclaimers.

3.3 It is the Client’s responsibility to arrange and pay for any third party licences that may be required to develop the Work including any associated costs for all font, stock photography, iconography, JavaScript and code libraries used.

3.4 If the Services include the creation of HTML e-mails the Client shall be responsible for building into the e-mail and managing the ability for the recipient to opt out of receiving further e-mails in accordance with the relevant law from time to time enacted. The Client agrees to comply with the Privacy and Electronic Communications Regulations 2003 and other anti-spam legislation.

3.5 The Client shall ensure that all legislative or other requirements which have particular application to the Client's business, products or services are drawn to Firefly’s attention in the Project Summary and in any event as soon as is reasonably practicable.

3.6 If the Client wishes Firefly to use its Corporate Identity when providing the Services it shall ensure that Firefly is provided with comprehensive instructions identifying the way in which that Corporate Identity should be used or presented.

3.7 The Client represents and warrants that:- (a) the Client has absolute rights in and title to the Corporate Identity and every part of the Corporate Identity and that it is able to allow Firefly to use the Corporate Identity freely, for the Project; and (b) the Client has all necessary, rights in or appropriate licences for the use of every part of the Client Materials provided by the Client to Firefly and is freely able to allow Firefly to use all the Client Materials for the Project and (c) it has full authority to enter into this Contract for the provision of the Services and the Work as outlined in the Project Summary.

3.8 Approval of the Proposal by the Client shall be Firefly’s authority to start production and procure the relevant Bought in Services. The Client shall be responsible for Approving the final design and content of the Work and the Client warrants that it has all necessary rights in or appropriate licenses for the use of every part of the Web Pages, e-mail templates or other Work Content as it shall Approve. The Client agrees promptly to review any material provided by Firefly and to provide appropriate feedback.

4. FEES AND CHARGES

4.1 In consideration of the provision of the Services by Firefly, the Client shall pay to Firefly the Fee identified in the Project Summary. The Client will also reimburse Firefly for all Approved Bought in Services purchased by Firefly for the Project and Approved out of pocket expenses incurred by Firefly in the provision of the Services.

4.2 All Fees or charges/reimbursement for Bought In Services or out of pocket expenses will be subject to the addition of VAT, or similar national sales tax, at the rate prevailing on the date of invoice. VAT will be identified separately on the relevant invoice.

5. BILLING AND TERMS OF PAYMENT

5.1 An invoice for 30% of the Fee for the Services will be submitted on Approval of the Project Summary. An invoice for a further 30% of the Fee will be submitted when Firefly commences the Services. An invoice for the balancing 40% of the Fees (including all adjustments to estimated amounts) will be submitted on Completion. All invoices are payable within seven days of receipt.

5.2 The cost of Bought in Services (if any) will be estimated in advance for Approval and, once Approved, will be payable in full by the Client in advance.

5.3 If the Client requires (and Firefly agrees to supply) services in addition to the Services agreed in the Project Summary any additional work or changes will be charged at the daily rate agreed in the Project Summary. No such services shall be provided by Firefly without prior Client Approval.

5.4 Firefly will be entitled to charge interest on late payments at the rate specified by regulations made under The Late Payment of Commercial Debts (Interest) Act 1998.

5.5 If the Client has any reason to dispute payment for any item identified in an invoice, the Client shall notify Firefly of the disputed item within seven days of receipt of the invoice and shall work constructively with Firefly to resolve any dispute. Notwithstanding any such dispute, the Client shall pay the balance of the sum due on such invoice (excluding the disputed item) by the due date.

5.6 If the Client fails to notify Firefly of any dispute within 7 days after the date of receipt of any invoice, that invoice shall be deemed accepted by the Client.

6. RESOLUTION OF DISPUTES

If any dispute develops between the parties whether concerning these terms and conditions or any other matter relating to the dealings between the Client and Firefly the parties shall meet promptly and use all amicable and constructive means to settle their differences and resolve the dispute (including by formal mediation or reconciliation through a recognised body) before recourse to the courts.

7. INDEMNITIES

The Client will fully indemnify and keep Firefly indemnified from and against all actions, proceedings, claims, demands and all related losses, damages, liability and expenses (including reasonable legal fees) suffered or incurred by Firefly directly as a result of any claim made against Firefly that:- (a) the Client is not entitled to use the Corporate Identity whether in the manner in which Firefly has been instructed to use that Corporate Identity or otherwise; or (b) Firefly has used any Client Materials, or any fact or description of or concerning the Client, its products or services which was provided to it by the Client, whether in the Project Summary or otherwise and the claim alleges that the relevant fact or description is false, deceptive, misleading or otherwise inaccurate.

8. LIMITATIONS ON LIABILITY

8.1 Firefly shall provide its services to the Client in a professional and workmanlike manner and in accordance with generally accepted good commercial practices.

ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED AND WHETHER AT COMMON LAW OR BY STATUTE OR OTHERWISE ARE HEREBY SPECIFICALLY EXCLUDED, SO FAR AS THE LAW PERMITS SUCH EXCLUSION.

8.2 Firefly shall use reasonable endeavours to meet any specified dates for performance of the relevant Services or delivery of any Work and shall notify the Client of any actual or potential delays to such provision or delivery. If the Client fails promptly to provide Firefly with appropriate instructions or Approval or to take action as identified in the Project Summary or otherwise agreed in writing, Firefly shall not be responsible for any consequential delay in the provision of Services or delivery of Work nor for any extra costs incurred or caused by such delay.

8.3 Firefly shall be released from its obligation to provide the relevant Services if an event beyond the reasonable control of either of the parties occurs and renders impossible the provision of those Services (“force majeure”) until the cause of any such force majeure is removed or overcome. Firefly shall not be liable for and the Client shall not have any right, claim or cause of action in respect of any delay in the provision of or failure by Firefly to provide the Services resulting from force majeure.

8.4 Subject to clause 8.1 and subject also to any provisions of law that prohibit the exclusion of liability, Firefly’s liability in respect of any Project shall be limited to the Fees received by it in respect of that Project.

9. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

9.1 Each party (the “Recipient”) undertakes with the other (the “Discloser”) that it will at all times, both during and after the term of any Project keep confidential and not disclose or permit the disclosure to any third party, without the prior written consent of the Discloser, of any confidential marketing, sales or statistical information, data or other material relating to the Discloser's business or method of carrying on its business and in the same way, where the Discloser is Firefly, the Client will keep confidential and not disclose or permit disclosure of techniques, proposals or ideas which Firefly may reveal to the Client.

9.2 Firefly shall retain the Intellectual Property Rights in all Firefly Pre-existing Materials and grants the Client a licence to such Intellectual Property Rights for the period of the Contract to the extent required to benefit from the Services.

9.3 The Client shall own the Intellectual Property Rights in the Content, Work and Work Content subject to the terms of clauses 2.3 and 10.2.

10. MANAGEMENT OF THE WEBSITE AND SOCIAL MEDIA CHANNELS

10.1 Firefly shall not post any Content onto the Website without prior Approval of the Client or those acting on behalf of the Client. The Client will procure that Approval is given to Firefly as promptly as possible and shall be responsible for the accuracy and completeness of the approved Content. Unless the Client requires Firefly only to act on instructions of named individuals, Firefly (acting reasonably) is entitled to rely on all Approvals purported to be given on behalf of the Client.

10.2 As between the parties, the Client retains all Intellectual Property Rights in the Content and the Client grants Firefly a licence to such Intellectual Property Rights to the extent required to perform Firefly’s obligations pursuant to this agreement.

10.3 Where the Website or Social Media allows comments to be posted by visitors, the Client acknowledges that Firefly has no responsibility for monitoring or controlling such comments. Firefly reserves the right to remove Inappropriate Content from the Website.

10.4 The Client shall indemnify Firefly against all damages, losses and expenses arising as a result of any action or claim (a) that any Content approved by the Client infringes the Intellectual Property Rights or other rights of a third party and/or (b) that any Content or any comment posted to, or linked to, the Website constitutes Inappropriate Content.

10.5 Firefly may include the statement “Website by Firefly Digital Marketing Limited” as a footer on each page of the Website in a form to be agreed.

11. HOSTING SERVICES

11.1 When requested Firefly will provide website hosting and maintenance services through Rackspace US Inc (or at Firefly’s discretion any other equivalent provider). Firefly shall use reasonable commercial endeavours to provide a reliable and professional service and to minimise downtime of the Website. The Client acknowledges that Firefly cannot guarantee that the hosting service will be available at all times, especially if there is a failure beyond Firefly’s control. Scheduled and emergency maintenance may be required from time to time and where possible Firefly undertakes to give the Client as much prior warning of such downtime as reasonably possible. In the event of an unexpected emergency it may not be possible to give any notice. Firefly runs weekly backups and endeavours to keep downtime to a minimum.

11.2 Firefly agrees to take all commercially reasonable and prudent steps within its control to prevent hacking and other malicious activity relating to the Website. The Client acknowledges that no website can be fully secure and that Firefly has no direct control over the hosting of the Website. Firefly gives no warranty or undertaking that the Website will not be hacked or subject to malicious activity and has no liability for such activity.

11.3 Hosting services are billed monthly or quarterly in advance in accordance with the Project Summary. Fees may change depending on bandwidth, memory and general hosting requirements. If the agreed bandwidth is exceeded Firefly reserves the right to increase the hosting fee or to cease providing hosting services to the Client. In the event that the Client fails to pay the fees associated with hosting the Website, Firefly reserves the right to cease or suspend hosting the Website Firefly may charge an administration fee for reactivating the Website where hosting services have ceased or been suspended following the Client’s failure to pay fees.

12. DATA PROTECTION

12.1 Firefly undertakes that it registered under the Data Protection Act 1998 and to the extent that it processes any personal data (as that term is defined in the Act) on behalf of the Client it shall only do so on instructions from the Client.

12.2 The Client undertakes that prior to receipt by Firefly all such personal data shall have been collected and processed in accordance with the Act and shall indemnify Firefly against all damages, losses and expenses arising as a result of any action or claim that such personal data has not been collected and/or processed in accordance with the Act.

13. SEARCH ENGINE OPTIMISATION

Firefly will use reasonable commercial endeavours to optimise the position of the Website on search engines but cannot guarantee any specific improvement and will not be liable for any changes to the position of the Website on search engine results.

14. TERMINATION

14.1 Either party may terminate the Contract forthwith and Firefly shall be entitled to charge the Client for work already carried out up to the date of termination (whether completed or not) if the other party becomes insolvent, appoints a receiver or makes an arrangement with its creditors concerning all or substantially all of its assets.

14.2 Firefly shall not be obliged to continue to provide any of the Services under any part of the Contract if the Client has failed to pay any invoice by the due date, has received written notice from Firefly formally demanding payment and within seven days of receipt of such notice has failed to do so.

14.3 If the Contract is terminated for default or if the parties agree to terminate the Project prior to Completion, the Client shall pay Firefly all sums due to it as at the effective date of termination in accordance with the payment terms of these terms and conditions and Firefly shall deliver to the Client all work completed to that date.

15. GENERAL

15.1 These terms and conditions together with the Project Summary constitute the entire agreement between the parties relating to its subject matter. Neither party shall have any remedy or liability for any statements (whether oral or in writing) unless expressly incorporated into the Contract.

15.2 Any variation to the Contract shall be in writing and signed by or on behalf of both parties

15.3 The Contract and any dispute or claims arising out of or in connection with its subject matter are governed by and constructed in accordance with the law of England and Wales. Subject to clause 6 the parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim.

16. CHANGES TO OUR TERMS & CONDITIONS

Any changes we may make to our Terms & Conditions for the provision of services in the future will be posted on this page.

Last updated: 21 November 2013

17. COMPANY REGISTRATION DETAILS

The Company is registered in England and Wales under company number 07238871. The Company’s registered office is at 27 Mortimer Street, London W1T 3BL, United Kingdom.