Terms
Introduction
This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
All services that Firestart Creative Design Group may be contracted to produce or provide for Clients Actual Name (referred to as CLIENT) will be subject to the following:
Our Commitment to you
i) We respect our CLIENT's confidentiality (Item 8).
ii) If the CLIENT determines that the work does not comply with the project components agreed to in this document, Firestart Creative Design Group agrees to carry out any necessary and reasonable modifications without extra charge (Item 18).
iii) We use open source solutions wherever possible, meaning no software licensing fees or vender lock-in (Item 19).
iv) If the CLIENT is not happy with our software services, the CLIENT is free to move their domain name, application and data in its entirety to another service provider (Item 20).
v) Our service is based on long term support in building the application, online presence and returns to the CLIENT'S business. Firestart Creative Design Group offers various packages to the CLIENT to provide this service outlined in the attached schedules.
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(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
"Content" means all materials, information, photography, writings and other creative content.
"Copyright" means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. and International Copyright Law.
"Application" means the software application(s) designed and/or developed by Firestart Creative Design Group for the CLIENT. Software applications include mobile applications, web applications, websites, iPhone applications, Content Management Systems, modules, plug-ins, or any other virtual applications defined in project estimate.
"Deliverables" means the services and work product specified in the Proposal to be delivered by Firestart Creative Design Group to the Client, in the form and media specified in the Proposal.
"Services" means all services and the work product to be provided to Client by Firestart Creative Design Group as described and otherwise further defined in the Proposal.
"Trademarks" means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
"Open Source Software" means computer software for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that meets the Open Source Definition or that is in the public domain.
General Terms
1. Authorization
The CLIENT authorizes Firestart Creative Design Group to perform the services outlined in this agreement on the CLIENTS' behalf, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, and submitting the project to search engines.
2. Agreement Scope and Period
Services supplied, costs and rates are limited to what is specifically set forth in this agreement. Any additional services will require a new agreement. Costs and rates for additional services will remain fixed, as outlined in this agreement, for a period of 12 months from the commencement date of this agreement. We reserve the right to adjust our service and rates after this period.
3. Working/Billing Phases
Based on our experience with long-term design communication projects, we have found that it is mutually advantageous to handle each project in logical working/billing phases. We don't want to limit either your options or your opportunities to change your mind.
For each project, the CLIENT will receive a proposal/estimate outlining the project specifications and the proposed scope of services and working/billing phases. Each proposal estimate will contain a project budget, which includes estimated fees for professional services and separate itemized costs for anticipated outside expenses.
We will begin work upon the CLIENT's approval of the written estimate included in this document. The CLIENT's written approval or payment of deposits will constitute an Agreement between us.
Concept revisions, extensive alterations, or a switch in marketing objectives sometimes makes it impossible to accurately estimate in advance the total cost of a project. Planning the work, cost estimating, and billing in several phases permits Firestart Creative Design Group or the CLIENT to adjust for such revisions before completion of the project.
4. Costs and Fees
Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, color printouts, laminating, illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to Sales Tax.
5. Overtime
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT's requested "Priority Scheduling". Requested priority schedules that require overtime and weekend work will be subject to 60% markup at an hourly rate. Overtime is defined as 6.00pm and 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6. Production Schedules
Knowledge of the CLIENT's deadlines is essential in order to provide an accurate estimate. Production schedules will be established and adhered to by both the CLIENT and Firestart Creative Design Group. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.
7. Payment
7.1 The CLIENT agrees to pay Firestart Creative Design Group in accordance with the terms specified in each proposal/estimate. The CLIENT will be required to pay 50% of the project estimated cost before commencement of work. Unless otherwise specified, all subsequent balances due are payable upon completion of key stages of the project.
7.2 If The CLIENT fails to pay any invoice, Firestart Creative Design Group reserves the right to withdraw the software, project and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied. Firestart Creative Design Group will charge a late Payment fee of 5% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.
7.3 In the event of cancellation of the project prior to Completion, The CLIENT must pay Firestart Creative Design Group a fee for work completed, based on the contract price and the expenses already incurred.
8. Confidentiality
Firestart Creative Design Group will not disclose to any third party or use, other than for the purposes of this Agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this Agreement, which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the CLIENT.
This obligation of confidence will cease to apply in relation to information that Firestart Creative Design Group is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Firestart Creative Design Group of its obligations of confidence under this Agreement.
9. Subcontractors
Firestart Creative Design Group reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.
10. Promotion
The CLIENT agrees that Firestart Creative Design Group has the right to use the CLIENT's application, associated graphics and any unused ideas and development in the promotion of Firestart Creative Design Group services. The CLIENT agrees to not remove the Firestart Creative Design Group credit and link from the footer of the application unless permission is granted by Firestart Creative Design Group.
11. CLIENT Copyright
11.1 After acceptance of the work and payment of all sums due by the CLIENT, Firestart Creative Design Group agrees to assign perpetual and unrestricted copyright to use any materials produced by Firestart Creative Design Group on behalf of the CLIENT as outlined in this agreement including application and associated graphics to the CLIENT.
11.2 Firestart Creative Design Group reserves all rights over working and source files, content produced or supplied by Firestart Creative Design Group as well as the application design itself. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.
12. Force Majeure
Firestart Creative Design Group shall not be deemed in breach of this Agreement if Firestart Creative Design Group 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 Firestart Creative Design Group or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Firestart Creative Design Group's control (collectively, "Force Majeure Event"). Upon occurrence of any Force Majeure Event, Firestart Creative Design Group shall give notice to 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.
13. Limitation of liability
The services and the work product of Firestart Creative Design Group are sold "as is."In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates ("Firestart Creative Design Group parties"), to client for damages for any and all causes whatsoever, and client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Firestart Creative Design Group. In no event shall Firestart Creative Design Group 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 Firestart Creative Design Group even if Firestart Creative Design Group has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
14. Termination
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that Work is postponed or terminated at the request of the CLIENT, Firestart Creative Design Group shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within thirty days of the Client’s written notification to stop work. In the event of termination, the Client shall also pay any expenses incurred by Firestart Creative Design Group and Firestart Creative Design Group shall own all rights to the Work. The Client shall assume responsibility for collection of all legal fees necessitated by default in payment.
Web Application Installation
15. Domain Names
15.1 All domain names are legally owned by the CLIENT. All domain name registrations are subject to availability and registration rules. The CLIENT manages their domain(s) and payment of fees unless the CLIENT requests in writing that Firestart Creative Design Group manage the domain name(s) on behalf of the CLIENT. Firestart Creative Design Group will then invoice the CLIENT when fees are due.
The CLIENT must supply all relevant business details to allow for registration if Firestart Creative Design Group agrees to register the domain(s) on behalf of the CLIENT. Firestart Creative Design Group will support the CLIENT to move the domain to a CLIENT controlled registrar if the CLIENT is no longer using Firestart Creative Design Group services.
15.2 Firestart Creative Design Group uses New Dream Network, LLC (referred to as REGISTRAR) to manage our CLIENTS's domain names. CLIENTS are bound by the REGISTRARS's "Domain name registration terms" which are found on their website:
http://www.dreamhost.com/register-agreement.html
15.3 The CLIENT indemnifies Firestart Creative Design Group against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
16. Browser Variance
Our applications are built for xhtml compliant browsers and Internet Explorer (IE). We test using the browsers that are statistically the most commonly used. The layout may change in older browsers.
Applications are tested on
* Internet Explorer versions 6, 7 and 8
* Firefox version 3
* Safari version 3
Firestart Creative Design Group will test and optimize for additional browsers and versions if requested by the CLIENT before commencement of the project.
17. Colors
Website visitors use different monitors with different settings. Colors of the application including graphics and photography will shift (darker or lighter) between computers and monitors.
18. Testing and Acceptance of the Application
Once the project has, in the opinion of Firestart Creative Design Group been completed, Firestart Creative Design Group will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to test and review the application. If the CLIENT determines that the application does not comply with the Project Components agreed to in this document, Firestart Creative Design Group agrees to carry out any necessary and reasonable modifications without extra charge.
19. Open Source Software
19.1 Firestart Creative Design Group makes extensive use of Open Source software and components to supply applications and services to the CLIENT. No licensing Fees will be charged on open-source software.
19.2 The CLIENT indemnifies Firestart Creative Design Group against any loss or damage arising directly or indirectly from any failure of software supplied to the CLIENT.
19.3 All software and components not developed by Firestart Creative Design Group retain the original license and terms associated with them. Firestart Creative Design Group cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.
20. Application and Data
20.1 Upon the end of our agreement, The CLIENT is free to transfer their application management to another service provider. Firestart Creative Design Group will supply the last backup of the site and associated databases. Firestart Creative Design Group will take all reasonable actions to transfer the CLIENT’S domain name to a new registrar.
20.2 If the CLIENT chooses to move to a new supplier, Firestart Creative Design Group will cease providing the service of storing the CLIENTS data including backups and content.
20.3 It is the CLIENT's responsibility to pay any costs to transfer and/or install the application and data on a new service.
21. Client Responsibilities
If the CLIENT or an agent of the CLIENT other than Firestart Creative Design Group attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at our STANDARD or OVERTIME hourly rate, and is an additional cost above the costs outlined in this agreement.
Content Management
22. Copy
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office, InDesign). Extra costs will apply if Firestart Creative Design Group is required to transcribe copy, if the copy requires reformatting or needs to be edited or rewritten.
23. Images
Graphics and photographs are to be supplied in digital format to Firestart Creative Design Group. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing. Firestart Creative Design Group is able to manage the digitization of photos for an additional fee.
24. Branding
All logos and branding must be provided in a professional format (preferences are: EPS, PDF in vector format, Illustrator and Freehand). We also accept bitmaps such as JPEG, GIF and Photoshop files. If supplied in a low-resolution bitmap format, Firestart Creative Design Group cannot be held responsible for image quality. If the logo is in bitmap format and the background needs to be removed to integrate the logo into the design, extra costs may be incurred. Logos can be created or reproduced by Firestart Creative Design Group for an additional fee.
25. Copyrights
25.1 The CLIENT is responsible for all trademark, service-mark, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials Firestart Creative Design Group uses for this project. The CLIENT indemnifies Firestart Creative Design Group against any loss or damage arising directly or indirectly from any unauthorized use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
25.2 Firestart Creative Design Group has existing relationships with various industry organizations that license content and may manage copyrighted content on behalf of the CLIENT. Firestart Creative Design Group makes no claim of ownership over these materials. All copyrighted material, not developed by Firestart Creative Design Group retain the original license and terms associated with them. Firestart Creative Design Group cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the Copyright Holder's terms.
26. Errors and Omissions
It is Firestart Creative Design Group's responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. However Firestart Creative Design Group is not liable for errors or omissions. The CLIENT’s signature or written authorization or that of an authorized representative is required on all work prior to release for publishing or other implementation. The CLIENT indemnifies Firestart Creative Design Group against any loss or damage arising directly or indirectly from any errors and omissions.
27. Revisions
Firestart Creative Design Group will provide two rounds of revisions after the submission of content, before the work is completed. Extended revisions outside of this scope will be charged under “Content Management” rates.
28. Content Delays
If the CLIENT fails to supply content at the agreed date outlined in Schedule 8, the remaining balance of the project is due and payable.
Schedule 1
Hosting
Hosting includes data space for the application and content, email services, data transmission and security management of the computer which hosts the site.
Hosting is supplied by Site Cloud, LLC (referred to as the HOST). Firestart Creative Design Group has no relationship with Site Cloud other than leasing hosting services.
1. Firestart Creative Design Group agrees to liaise with the HOST on behalf of the CLIENT to provide technical management of the CLIENT's application.
2. Firestart Creative Design Group is not responsible in anyway for the technical or customer service provided by the HOST including but not limited to: uptime, connection issues, backups and security breaches. The CLIENT indemnifies Firestart Creative Design Group against any loss or damage arising directly or indirectly from any failure of services provided by the HOST.
3. The CLIENT agrees to be bound by any applicable laws and the HOST's terms as outlined on their website:
http://sitecloud.com/legal/tos.php
4. If the CLIENT chooses another hosting supplier, the CLIENT is responsible for contacting the chosen host for support relating to hosting matters. Firestart Creative Design Group will charge for costs incurred liaising with the hosting company, technical management and supporting the CLIENT with hosting related issues. Firestart Creative Design Group will charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames.
Schedule 2
Maintenance Plan (software and security)
1. On a Quarterly basis Firestart Creative Design Group agrees to:
* Upgrade the WordPress software and all plug-ins
* Update Passwords
* Back up the site (before and after upgrade) (in addition to the host)
2. During the Quarterly period Firestart Creative Design Group agrees to:
* Apply emergency security patches and software upgrades (if required)
* Respond to any technical malfunctions or security breaches
* Restore application and data to latest backup if data is compromised
* Monitor the HOST and contact the HOST in case of server issues
3. Maintenance services apply to all software installed under this agreement and does not include additional software or additional configuration of existing software.
4. The date of the quarterly application maintenance will be adjusted pro rata to the monthly maintenance cycle.
5. Firestart Creative Design Group reserve the right to define the duration and level of any support action. Firestart Creative Design Group may not be able to provide some levels of support if appropriate support personnel are not available, unless agreed under a separate schedule.
Schedule 3
Search Engine Optimization (SEO) and marketing plan
1. Firestart Creative Design Group will supply the application source code and content structure in an optimized format that aims to maximize search engine indexing.
2. Search engine rankings cannot be controlled by Firestart Creative Design Group and therefore the CLIENT agrees that no guarantees can be given by Firestart Creative Design Group in respect to such rankings.
3. Firestart Creative Design Group will supply initial SEO strategy and goals for the CLIENT. It is expected that the CLIENT actively implements the SEO strategy and works towards their goals unless it is agreed that Firestart Creative Design Group supply this service.
4. On a Quarterly basis Firestart Creative Design Group agrees to:
* Review content to ensure it is correctly optimized
* Review statistics
* Update SEO plan
* Conduct a reporting meeting via phone to discuss SEO strategy and Results
Schedule 4
General Support and Training
1. Firestart Creative Design Group will work with the CLIENT to improve the CLIENT'S application management skills.
2. Training will be conducted at the CLIENTS current skill level. The amount of learning will be dependent on the CLIENT'S current skill level and learning abilities.
3. Training will be conducted one on one remotely. It is expected that the CLIENT arranges broadband internet during training to make best use of the time.
4. Training may include (but not be limited to):
* WordPress content management
* WordPress technical and plugin management
* Advanced WordPress features and plug-ins
* Image optimisation
* Producing content for visitors and search engines
* Email management
* Email marketing
* Advanced search engine marketing
* Web based promotion
* Social media marketing
5. Support and training is charged in 15 minute blocks.
Schedule 5
Content Management
Firestart Creative Design Group will manage the CLIENT's content on behalf of the CLIENT.
1. The CLIENT is required to review the content to comply with clauses 25 and 26.
2. Content management may include (but not be limited to):
* Research
* Producing copy/photography/film/media
* Sourcing copy/photography/film/media
* Copy/photography/film/media optimization
* Copyright management
* Content supplier liaison
* Uploading content to CLIENT'S application
* Uploading content to external applications
* Social media management