Terms & Conditions

These Terms and Conditions are effective from the date you:

  • Accept an official online estimate from Firefish Creative via our online invoicing system Freshbooks, or
  • Agree to a quote through email communication, or
  • Request work from Firefish Creative at the usual hourly rate

 

FIREFISH CREATIVE TERMS AND CONDITIONS 

  1. DEFINITIONS
    • As used herein and throughout this Agreement:
      Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or
    • Attachments hereto:
      The Client Content means all materials, information, photography, writings and other creative content provided by The Client for use in the preparation of and/or incorporation in the Deliverables.
    • Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law.
    • Deliverables means the services and work product specified in the Proposal to be delivered by Firefish Creative to The Client, in the form and media specified in the Proposal.
    • Firefish Creative Tools means all design tools developed and/or utilized by Firefish Creative in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
    • Final Artwork means creative content supplied to the client for it’s intended final use, including and by way of example, not limitation, high resolution print ready PDF files, HTML website files, low resolution photographic images or final printed artwork.
    • Original Artwork files means all creative content developed or created by Firefish Creative, or commissioned by Firefish Creative, exclusively for the Project, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to The Client Content, and Firefish Creative’s selection, arrangement and coordination of such elements together with The Client Content and/or Third Party Materials.
    • Final Deliverables means the final versions of Deliverables provided by Firefish Creative and accepted by The
    • Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Firefish Creative and which may or may not be shown and or delivered to The Client for consideration but do not form part of the Final Art.
    • Project means the scope and purpose of the The Client’s identified usage of the work product as described in the
    • Services means all services and the work product to be provided to The Client by Firefish Creative as described and otherwise further defined in the Proposal.
    • Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
    • Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of The Client.
    • Domain Terms means those additional domain name specific terms located within this document.
    • Fees means the charges for the Services as outlined in your proposal document, or our hourly rate of $85 per hour. Unless otherwise stated, the Fees are exclusive of taxes.

 

  1. GENERAL
    • Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Firefish Creative’s invoices may include, and The Client shall pay, expenses or costs that The Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
    • Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail with return confirmation of receipt. Notice shall be effective upon confirmation of receipt.
    • No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
    • Force Majeure. Firefish Creative shall not be deemed in breach of this Agreement if Firefish Creative is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Firefish Creative or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Firefish Creative’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Firefish Creative shall give notice to The Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
    • Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Australia without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. The Client acknowledges that Firefish Creative will have no adequate remedy at law in the event The Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Firefish Creative shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
    • Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
    • Heading The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
    • Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, Schedule A.

 

  1. TERM AND SERVICES
  • This Agreement commences on the date you:
    • Accept an official online estimate from Firefish Creative via our online invoicing system Freshbooks, or
      Agree to a quote through email communication, or
      Request work from Firefish Creative at the usual hourly rateand terminates on the day notified by either party in accordance with the terms of this Agreement, or until the Services are completed and delivered.
    • Services will be automatically renewed for further periods equal to the previous term, unless identified otherwise by writing.
    • This Agreement may be terminated at any time by either party upon thirty (30) days notice, or the mutual agreement of the parties, or if any party:
      becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
      breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
  • In the event of termination, Firefish Creative shall be compensated for the Services performed through the date of termination in the amount of any advance payment, a prorated portion of the fees due, or hourly fees for work performed by Firefish Creative or Firefish Creative’s agents as of the date of termination, whichever is greater; and The Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
  • Upon expiration or termination of this Agreement, each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

 

  1. FEES AND CHARGES
    • Fees, to be charged as either:
      • Hourly Rate – Regular: In consideration of the Services to be performed by Firefish Creative, The Client shall pay to Firefish Creative an hourly rate of $85 for all work between the hours of 8am and 6pm, Monday to Friday.
      • Hourly Rate – After hours: In consideration of the Services to be performed by Firefish Creative, The Client shall pay to Firefish Creative an after hours hourly rate of $110 for all work outside the hours of 8am and 6pm, Monday to Friday.
      • Set Project Amount: A set amount can be agreed upon for an entire project, prior to commencement of that project. All hours worked on that project are to be between the hours of 8am and 6pm, Monday to Friday. If the Client requires the Set Amount Project be worked on outside of these hours, and additional hourly fee of $110 applies.
    • Additional Costs. The Project pricing includes the fee outlined in your package only. Any and all outside costs including, but not limited to, additional stock images, photography and/or artwork licenses, music licenses, online access or additional hosting fees, print or production fees will be advised to the Client prior to Firefish Creative purchasing on the Clients behalf, and billed to The Client separately.
    • All invoices are payable within fourteen (14) days of receipt. A monthly service charge of 1.5 percent is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Firefish Creative reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
    • If you wish to dispute an invoice or charge, then you agree to do so in good faith and within fourteen (14) days of date of invoice or charge.
    • If your Account contains a negative balance or you fail to pay any Fees when due, we may suspend your Account, or the provision of Services to you.
    • In the event any collection action is taken by us to recover any overdue amount, any costs incurred by us in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred) are payable by you and shall be recoverable by us as a separate debt.

 

  1. OBLIGATIONS
    • You are responsible for:
      arranging and obtaining, any and all intellectual property right consents, clearances and authorisations (including from any third party) necessary to ensure the ordering, provisioning and/or use of our Services does not infringe upon any third party intellectual property rights. This includes, without limitation, the provision of copyrighted materials, use of trademarks and/or logos, use of fonts; and (except to the extent we are supplying as part of a Service to you) the proper backup and protection of all your software and data, as well as the implementation and maintenance of firewalls and reasonable security measures (including without limitation, proper virus control).

 

  1. WARRANTIES / DISCLAIMERS
    • You represent and warrant that:
      you are authorised to enter into this Agreement, and provide any required consents, clearances and authorisations under this Agreement to us;
    • you will comply with all applicable laws relating to your performance under this Agreement (including without limitation, your use of our Services), and will not be involved in any activity which may directly or indirectly bring us or any Registry or third party supplier into disrepute; and
    • you will act in good faith when dealing with us and utilising our systems and/or Services, and will promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreement (and the transactions contemplated by it).
    • We shall use reasonable commercial endeavors to provide continuing availability of our Services, and to minimise any downtime or interruptions to the availability of our Services.
    • To the maximum extent permitted by law, all other conditions, warranties and guarantees expressed or implied by any legislation, the common law, equity, trade, usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded. We make no warranty, express or implied, that the Services, access and use of our systems, or information received by any party through use of our Services or systems, will be uninterrupted, error-free, virus-free, timely, secure, accurate, reliable or of any particular quality or standard, or any terms and conditions made available to you are valid, enforceable or comply with all applicable laws. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service or access to our systems.
    • Certain provisions of the Competition and Consumer Act 2010 and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions or mandate certain statutory guarantees. To the extent that they are not permitted to be excluded, our liability for breach of such conditions, warranties or guarantees and your sole and exclusive remedy in relation to such breaches shall be limited to:
    • in the case of software or other goods under this Agreement, at our option:
      • replacing or repairing that software or those goods, or supplying of equivalent software or goods; or
      • paying the cost of replacing or repairing software or goods or of acquiring equivalent software or goods; and
    • in the case of Services under Agreement, at our option:
      • supplying the Services again; or
      • paying the cost of having the services supplied again.
    • We specifically disclaim any and all warranties, representations, terms and conditions related to or in connection with the products, services and performance of third parties, regardless of whether you (or your end-customers) are aware that any such product, service or performance is provided by a third party.

 

  1. LIABILITY AND INDEMNITY
    • To the maximum extent permitted by law and subject to clause 6.5, you agree that we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement.
    • Other than liability accepted by us in clause 6.7 and 6.8, our total liability for loss or damage of any kind not excluded by clause 7.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement shall not exceed an amount equal to the Fees paid by you to us in the preceding six (6) months for that Service.
    • You agree to indemnify, keep indemnified and hold us harmless from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by us in respect of any claim (i) by a third party arising in connection with this Agreement (except to the extent such a third party claim arises as a direct result of our breach of this Agreement), and/or (ii) arising in connection with your breach of this Agreement.
    • The damages payable by one party to the other party under or in connection with this Agreement will be reduced to the extent that the act or omission giving rise to liability to pay those damages was caused or contributed to by that other party.

 

  1. SUSPENSION
    • We may immediately suspend your Account, or the provision of Services, where you fail to comply with any term(s) of this Agreement (including without limitation, complying with payment terms and any Service Terms and/or Domain Terms (as applicable)).
    • We will not be liable in any way for suspension of your Account or the provision of Services (including any nonperformance of Services).

 

  1. TERMINATION
    • We may terminate this Agreement immediately and without prior notification if:
      • you are in breach of any term(s), conditions or obligations in this Agreement and (if the breach is capable of remedy) the breach has not been remedied within fourteen (14) days of notification from us setting out the breach and requiring it to be remedied;
      • you dispose of the whole or part of your assets, operations or business other than in the normal course of business (except for purposes of a re-organisation or reconstruction);
      • you cease to be able to pay your debts as they become due, have an administrator appointed or cease to carry on business; or
      • you are subject to an event of force majeure in excess of sixty (60) days.
    • Either party may terminate this Agreement for convenience on thirty (30) days’ written notice to the other party.
    • On termination of this Agreement:
      all outstanding Fees become immediately due and payable by you. Subject to the preceding sentence or any claim we have, you will be entitled to repayment of any unused credit in your Account
    • In the event a third party supplier ceases its supply of any services to us (which are, or form part of, a Service to you), we will use reasonable commercial endeavors to honour the remaining period of your then-current Service However, to the extent any Service is detrimentally affected as a result of any third party supplier ceasing or varying its services, we will not be liable for any resulting delays, faults or inability to perform our obligations to you under this Agreement in respect of any such impacted Service. We will endeavour to notify you of any anticipated impacts as soon as practicable.

 

  1. COMMUNICATIONS
    • In addition to general Account, Billing and Service communications, we may, from time to time, issue email notifications relating to our Services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into this Agreement, you consent to us sending you email communications. You may unsubscribe from these communications at any time by advising us via email or by clicking the unsubscribe link provided within the communications. You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.

 

  1. DATA PROTECTION
    • We shall ensure that when storing and processing personal data (Data) we shall at all times comply with the provisions and obligations of the Australian Privacy Act 1988 (Privacy Law) and will only store or process Data in relation to the Services in accordance with our Privacy Policy.

 

  1. GRAPHIC & WEB DESIGN – CHANGES AND AMENDS
    • Unless otherwise agreed upon in the total project fee, The Client shall pay additional charges for changes requested by The Client which are outside the scope of the original brief or project agreement, at Firefish Creative’s standard hourly rate of $85 per hour. Such charges shall be in addition to all other amounts payable under the agreement, despite any maximum budget, contract price or final price identified therein. Firefish Creative may extend or modify any delivery schedule or deadlines as may be required by such Changes.

 

 

  1. TIMING
  • Firefish Creative will prioritise performance of the Services as may be necessary and will undertake commercially reasonable efforts to perform the Services within the time(s) identified. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
    • approve the Deliverables in writing or
    • provide written comments and/or corrections sufficient to identify the The Client’s concerns, objections or corrections to Firefish Creative.

 

  1. WRITTEN CLARIFICATION
    • Firefish Creative shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that Firefish Creative’s ability to meet any and all schedules is entirely dependent upon The Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions and that any delays in The Client’s performance or Changes in the Services or Deliverables requested by The Client may delay delivery of the Deliverables. Any such delay caused by The Client shall not constitute a breach of any term, condition or Firefish Creative’s obligations under this Agreement.

 

  1. TESTING AND ACCEPTANCE
    • Firefish Creative will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to The Client. The Client, within five (5) business days of receipt of each Deliverable, shall notify Firefish Creative, in writing, of any failure of such Deliverable, or of any other objections, corrections, changes or amendments The Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Firefish Creative will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from The Client, the Deliverable shall be deemed accepted.

 

  1. BACKUP
    • You are responsible for keeping a copy of any existing Web Site which we may replace pursuant to the provision of web design services including all databases and hosted files.

 

  1. CONTENT
    • We are not responsible for the contents of anything we design for you unless it has been provided as professionally copy-written content by our third-party copywriter and purchased as part of a project package, and upon publication you must satisfy yourselves that the material will comply with all applicable laws, and codes of practice governing the use of printed & online material and related services. This includes the intellectual property and copyright ownership of all material that you have provided to us. We are similarly not responsible for your subsequent use of the product and your compliance of various commonwealth and state legislations.

 

  1. THIRD PARTY CONTRACTORS
    • You agree that in the provision of Graphic & Web Design services by us we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and content, provided to us by you.

 

  1. ADDITIONAL TERMS FOR TAILORED WEBSITES
    • All website content must be provided by you within 1 calendar month of invoice (project commencement). If your data is not supplied within 1 month, we reserve the right to place your project on administrative hold. If no data is supplied within 2 months of invoice, the project will be cancelled and subject to cancellation fees.
    • You must provide complete feedback within 5 calendar days during design concept and production review. If no feedback is provided within this time, we reserve the right to move forward with the project, assuming no changes have been requested and that work is accepted in its current form. Any changes requested past this time are subject to our standard rates of $85 per hour or part thereof.
    • You may request an Administrative Hold of your project for up to 6 months at a cost of $100. We will stop working on the project until you advise us that you are ready to move forward. If the project is placed on hold for more than 6 months, we will terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
    • If you are unhappy with your site design, you may request additional layout concepts, at a cost of $150 per layout, with full payment required upfront.
    • Once your website has been published, we will review and repair any pre-existing code errors and/or bugs in the website if reported within 30 days of publishing. Any cosmetic changes or alterations, or code errors reported outside of this time period will be subject to additional charges at our standard commercial rates of $85 per hour or part thereof.
    • For website builds including open source third party CMS applications (such as WordPress, Joomla or OS Commerce), website owners agree to pro-actively monitor available releases of upgrades and/or patches to secure their applications from hackers and malicious scripts. We will provide an on-demand upgrade service for any such application at a minimum cost of $158 per upgrade.
    • We warrant that the website functions to the level agreed upon at point of sale only for the server configuration where development takes place. We cannot be held responsible for errors or functionality loss if the website is published and hosted on a server environment that does not match the development server specifications.

 

  1. THE CLIENT RESPONSIBILITIES
    • The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
    • coordination of any decision-making with parties other than Firefish Creative;
    • provision of The Client Content in a form suitable for reproduction or
    • incorporation into the Deliverables without further preparation; and
    • final proofreading and in the event that The Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, The Client shall incur the cost of correcting such errors.

 

  1. ACCREDITATION/PROMOTIONS
    • Firefish Creative retains the right to reproduce, publish and display the Deliverables in Firefish Creative’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses, unless specifically forbidden by The Client and provided to Firefish Creative in writing.
    • Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

 

  1. CONFIDENTIAL INFORMATION
    • Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

 

  1. RELATIONSHIP OF THE PARTIES
    • Independent Contractor. Firefish Creative is an independent contractor, not an employee of The Client or any company affiliated with The Client. Firefish Creative shall provide the Services under the general direction of The Client, but Firefish Creative shall determine, the manner and means by which the Services are accomplished.
    • This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Firefish Creative and the work product or Deliverables prepared by Firefish Creative shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to The Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
    • Firefish Creative Agents. Firefish Creative shall be permitted to engage and/or use third party contractors or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Firefish Creative shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
    • No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by Firefish Creative, and Firefish Creative shall be entitled to offer and provide design services to others, solicit other the Clients and otherwise advertise the services offered by Firefish Creative.

 

  1. WARRANTIES AND REPRESENTATIONS
    • By The Client.
      The Client represents, warrants and covenants to Firefish Creative that;

      • The Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
      • to the best of The Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
      • The Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
      • The Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
    • By Firefish Creative.
      • Firefish Creative hereby represents, warrants and covenants to The Client that Firefish Creative will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
      • except for Third Party Materials and The Client Content, the Final Deliverables shall be the original work of Firefish Creative and/or its independent contractors,
      • in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Firefish Creative, Firefish Creative shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Firefish Creative to grant the intellectual property rights provided in this Agreement, and
      • to the best of Firefish Creative’s knowledge, the Final Art provided by Firefish Creative and Firefish Creative’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event The Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Firefish Creative shall be void.
      • EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, Firefish Creative MAKES NO WARRANTIES WHATSOEVER. Firefish Creative EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

 

  1. INDEMNIFICATION/LIABILITY
    • By The Client.
      The Client agrees to indemnify, save and hold harmless Firefish Creative from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of The Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Firefish Creative shall promptly notify The Client in writing of any claim or suit;

      • The Client has sole control of the defense and all related settlement negotiations; and
      • Firefish Creative provides The Client with commercially reasonable assistance, information and authority necessary to perform The Client’s obligations under this section. The Client will reimburse the reasonable out-of pocket expenses incurred by Firefish Creative in providing such assistance.
    • By Firefish Creative.
      Subject to the terms, conditions, express representations and warranties provided in this Agreement, Firefish Creative agrees to indemnify, save and hold harmless The Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Firefish Creative representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of The Client provided that The Client promptly notifies Firefish Creative in writing of the claim;

      • Firefish Creative shall have sole control of the defense and all related settlement negotiations; and
      • The Client shall provide Firefish Creative with the assistance, information and authority necessary to perform Firefish Creative’s obligations under this section. Notwithstanding the foregoing, Firefish Creative shall have no obligation to defend or otherwise indemnify The Client for any claim or adverse finding of fact arising out of or dueto The Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Firefish Creative.

 

  1. LIMITATION OF LIABILITY
    • THE SERVICES AND THE WORK PRODUCT OF Firefish Creative ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Firefish Creative, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“Firefish Creative PARTIES”), TO The Client FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND The Client’s MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF Firefish Creative. IN NO EVENT SHALL Firefish Creative BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY Firefish Creative, EVEN IF Firefish Creative HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

  1. INTELLECTUAL PROPERTY PROVISIONS
    • The Client Content. The Client Content, including all pre-existing Trademarks, shall remain the sole property of The Client or its respective suppliers, and The Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to Firefish Creative a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Firefish Creative’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
    • Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Firefish Creative shall inform The Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Firefish Creative shall inform The Client of any need to license, at The Client’s expense, and unless otherwise provided for by The Client, Firefish Creative will obtain the license(s) necessary to permit The Client’s use of the Third Party Materials on The Client’s behalf, consistent with the usage rights granted herein.
    • In the event The Client holds responsibility for obtaining above mentioned licence, and fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, The Client hereby indemnifies, saves and holds harmless Firefish Creative from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of The Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
    • Rights to Final Art: Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Firefish Creative hereby assigns to The Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Firefish Creative agrees to reasonably cooperate with The Client and shall execute any additional documents reasonably necessary to evidence such assignment.
    • Rights to Original Artwork: Firefish Creative retains all original artwork files, which can be released to the Client for an agreed original artwork fee to be negotiated at the time of release, unless otherwise specified in an agreement between The Client and Firefish Creative.
    • Rights to Preliminary Works: All preliminary works remain the property of Firefish Creative.
    • Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Firefish Creative assigns to The Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Firefish Creative for use by The Client as a Trademark.
    • Firefish Creative shall cooperate with The Client and shall execute any additional documents reasonably requested by The Client to evidence such assignment. The Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless Firefish Creative from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of The Client’s use and/or failure to obtain rights to use or use of the Trademark.
    • Copyright The copyright for any work delivered by Firefish Creative to The Client remains the propery of Firefish Creative until all monies due to me have been paid. Copyright is then the property of The Client.

 

  1. DOMAIN NAME & DOMAIN NAME REGISTRATION
    • Terms defined in Firefish Creative Terms & Conditions shall have the same meaning, unless the context requires otherwise.
    • To the extent that any of the below terms and conditions are inconsistent with any other provision in our terms and conditions with you, the below terms and conditions will prevail in respect of the relevant below domain name(s).
    • These Firefish Creative Domain Name and Domain Name Registration Terms & Conditions are hereby incorporated into Firefish Creative Terms & Conditions by reference.
    • Standard Domains .AU, .COM, .NET, .BIZ, .ORG, .INFO, .NZ, .UK, .MOBI, .CN
    • Collectively, these domains are referred to as the Standard Domains in these Firefish Creative Domain Terms.

 

  1. PRICING
    • Firefish Creative charges a yearly fee of $25 per domain for Domain Name Management. This includes the original registration, monitoring of the domain and any ongoing renewals. Firefish Creative will continue to renew the registration of The Client’s domain name on behalf of the client, on a yearly basis until The Client notifies us writing more than 30 days prior to the renewal date.

 

  1. GENERAL TERMS APPLICABLE TO ALL STANDARD DOMAINS
    You represent and warrant that:

    • each Registrant of has read, understood and agreed to the Registration Agreement (located within this document), and any additional Registry domain name policies applicable to the domain name(s);
    • you will comply with, and require all Registrants to comply with, all applicable laws, terms and conditions, regulations, rules and domain name policies of ICANN and the Registry in respect of each individual Standard Domain and/or New gTLD Domain (as applicable), as may be updated from time to time by ICANN or the relevant Registry; and
    • you will maintain sufficient evidence of such agreement to enable our terms and conditions (including without limitation any Registration Agreement) to be enforceable against the Registrant
    • You agree to ensure that domain registrations are applied for in your entity name (unless otherwise expressly agreed in writing);
    • You agree to reasonably cooperate with the applicable Registry of each Standard Domain in the performance of the Registry’s obligations in respect of that particular domain.
    • You agree to indemnify and hold harmless ICANN and the relevant Registry, and each parties’ officers, employees and agents from and against all liability to any third parties (including without limitation, any Registrants of yours) and associated costs in defending any action, claim, proceeding or demand by a third party to the extent to which liability or the claim arises from or in connection with access to our systems or use of our Services under the Agreement.

 

  1. RULES OF REGISTRATION
    • A registration or reservation of a domain name does not grant any legal rights of ownership of the relevant domain name, nor does it confer immunity from objection to the registration or use of the domain name.
    • We do not warrant or guarantee that any domain name applied for will be registered or is capable of being registered by you. No action should be taken in respect of a requested domain name until notification has been provided of successful registration. You irrevocably waive any claims you may have against us in respect of the decision of a Registry to refuse to register a domain name and, without limitation, agree that any administration charges paid by you to us shall be non-refundable in any such event.
    • Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non- refundable in any event.
    • We accept no responsibility for the use of a domain name by any party, and any disputes regarding a domain name must be resolved between the parties concerned. We will take no part in any such dispute. We reserve the right to, in our sole discretion and without providing any reason, on our becoming aware of such a dispute, either suspend or cancel the domain name, and/or to make appropriate representations and disclosures to the relevant Registry.
    • You agree that should this Registration Agreement be terminated by any party, or if the domain name expired or transferred to another registrar, any other services that may be associated with the domain name will remain active.
    • The customer of these other services will continue to be billed in accordance with the relevant terms and conditions.
    • We may require the applicant of a domain name (who upon registration, would become the Registrant) to supply accepted photo identification (valid passport or drivers license) to verify their identity.
    • You agree to indemnify and hold harmless ICANN and the relevant Registry, and each parties’ officers, employees and agents from and against all liability to any third parties (including without limitation, any Registrants of yours) and associated costs in defending any action, claim, proceeding or demand by a third party to the extent to which liability or the claim arises from or in connection with access to our systems or use of our Services under the Agreement.

 

  1. WEB HOSTING AND EMAIL
    • You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified as a limit in any Service plan. All excess data will be charged at the rate of 5.5c/MB to the nearest whole MB. These charges will fall due at the completion of the calendar month on normal trading terms of 14 days from invoice. We will provide an online interface allowing authorised users to monitor website data traffic.
    • The hosting service plans disk space pertains only to files required for the normal operation of your website, and which are linked to in that website. Our website hosting plans are expressly prohibited from use as an online file
    • Any site that uses greater than 89,000 inodes (every file on your hosting account uses 1 inode), or that create file system damage by the rapid creation of large volumes of files, will be subject to review and possible suspension.
    • For hosting service plans which specify UNLIMITED data transfer, should your site exceed burst (or ongoing) data transit of greater than 5Mb/sec, or otherwise degrade the network performance for other users, the account will be subject to review and possible suspension.
    • For any service plan which specifies UNLIMITED email accounts, should the mail boxes associated with your account exceed more than 1,000,000 aggregate messages, the account will be subject to review and possible
    • All hosting plans are subject to general resource and usage monitoring. Any action or process that consumes resources beyond a reasonable level and thus degrading the shared environment for other users is expressly prohibited: This includes but is not limited to:
    • Running standalone, automated server-side processes including, but not limited to any daemon:
    • running any bit torrent application, tracker or client;
    • participating in file sharing or other peer to peer sharing activity;
    • executing any script for longer than 180 seconds;
    • executing any database query that takes longer than 30 seconds to complete;
    • specifying cron tasks that execute more frequently than every 300 seconds.

 

  1. SEO TERMS
    • Due to the dynamic nature and changing algorithms of Search Engines, Firefish Creative offer no guarantees regarding the performance of sites based on Firefish Creative’s involvement.
    • Firefish Creative accepts no responsibility, liability or costs incurred for any conduct implemented by The Client that does not concur with or conform to the individual guidelines of each individual Search Engine.
    • Firefish Creative accepts no responsibility or liability for any actions taken by you that causes your website to be penalised or banned from any Search Engine. It is your responsibility to implement the changes, based on the Terms and Conditions outlined by each Search Engine specifically at the time of implementation.