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TERMS AND CONDITIONS
1. BINDING TERMS
1.1 These Terms are entered into between the Client and Firefly, and govern the Client’s use and Firefly’s provision of the Marketing Services.4.4
1.2 You can accept by either by electronically signing these Ts and Cs or by paying the Deposit to us (Acceptance).
1.3 These Terms will come into effect on the Commencement Date and continue in force for the Campaign Term unless and until they are terminated pursuant to clause 9.
2. DEFINITIONS AND INTERPRETATION
In these Terms, the following definitions apply:
Ads means the online advertising service operated by publishers known as but not limited to Google, Facebook, LinkedIN, under which advertisers pay these publishers to display relevant advertising to web users when using their platforms.
Business Day means any day (other than a Saturday, Sunday or public holiday, as that term is defined in section 5(1) of the Holidays Act 2003 on which registered banks are open for general banking business in Auckland, New Zealand.
Campaign means the digital marketing and advertising campaign of the Client as set out in the Digital Marketing Plan.
Campaign Disbursements means all disbursements in connection with the purchase of media and advertising for the Campaign.
Campaign Term means the Initial Term plus any Rollover Term.
Client means the Client specified in the Digital Marketing Plan.
Commencement Date means the commencement date of the Marketing Services, as specified in the Digital Marketing Plan.
Confidential Information means the contents (but not existence) of these Terms and the Marketing Proposal, together with any other commercially sensitive information which is expressly designated as being confidential when it is disclosed by Firefly to the Client.
Default Interest means interest at the Business First Overdraft Rate published by the Bank of New Zealand, calculated daily and capitalised monthly.
Digital Marketing Plan means the digital marketing plan provided by Firefly to the Client that sets out the Marketing Services to be provided and the relevant Fees.
Dispute means any dispute arising under or relating to these Terms and/or the Marketing Services.
Fees means the fees applicable for the Marketing Services, as specified in the Digital Marketing Plan or as otherwise agreed by the parties in writing.
Firefly means Firefly Digital Limited, a limited liability company incorporated and registered in New Zealand with company number 5198401.
GST means goods and services tax chargeable under the Goods and Marketing Services Tax Act 1985.
Initial Term means the initial term for the Campaign specified in the Digital Marketing Plan, which shall commence on the
Intellectual Property means all intellectual property, proprietary and industrial rights arising in connection with Firefly’s business (including all copyright and trade marks and the Digital Marketing Plan), whether existing in statute, at common law or in equity, and whether registered or unregistered, registrable or unregistrable, and includes all allied, similar and associated rights and all improvements, enhancements, modifications and adaptations to any of the foregoing rights.
Marketing Services means the services to be provided by Firefly to the Client as specified in a Digital Marketing Plan, and such other services as may be agreed in writing by the Parties.
Parties means the Client and Firefly, and Party means either one of them.
Resolution Institute means the New Zealand branch of the Resolution Institute, an overseas ASIC company registered in New Zealand with company number 4771939.
Rollover Term means the rollover term for the Campaign specified in the Digital Marketing Plan, which shall commence on and from the end of the Initial Term.
Terms means these terms and conditions, as amended and/or replaced from time to time.
2.2 In these Terms, the following rules of interpretation apply:
a. References to the Parties include their respective executors, administrators, successors and permitted assigns.
b. References to clauses are to those in these Terms.
c. References to persons include natural persons, companies and any other body corporates (wherever incorporated) and unincorporated bodies (wherever formed).
d A gender includes each other gender and the singular includes the plural and vice versa.
e. References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.
f. References to written or in writing shall include all modes of presenting words, figures and symbols in a visible form (including via email).
g. All periods of time include the day on which the period commences and on which it ends.
h. References to a statute or statutory provision means a New Zealand statute or statutory provision as amended, consolidated and/or replaced from time to time.
3. MARKETING SERVICES
3.1 For the Campaign Term, Firefly agrees to provide the Marketing Services to the Client in accordance with these Terms.
3.2 All services provided by Firefly are on a non-exclusive basis.
4. FEES AND CAMPAIGN DISBURSEMENTS
4.1 In consideration for the provision of the Marketing Services, the Client agrees to pay to Firefly the Fees and meet the costs of all Campaign Disbursements.
4.2 The Deposit, any one time cost or setup cost (Setup Cost) is payable on Acceptance and is not refundable; and
4.3 the sum of the monthly Firefly fee is payable monthly in advance with the first monthly fee being due upon commencement of the campaign.
4.4 The monthly fee in each month is determined as specified in this proposal which is the Monthly Fee or 30% of the media spend (whatever is greater). Where the amount payable is greater than the Monthly Fee paid for the relevant month, we will invoice you for the difference in the following month.
4.5 Firefly shall provide invoices to the Client for the Marketing Services on a monthly basis, which must set out all Fees and Campaign Disbursements for that month.
4.6 All Fees payable under these Terms must be paid by the Client:
a. by either credit card or direct debit;
b. not later than 10 Business Days of Firefly’s monthly invoice to the Client for the relevant Marketing Services;
c. in New Zealand dollars when the clients business is operating from New Zealand, Australian dollars when the clients business is operating from Australia. The currency that Firefly will be billing the client will be loaded into the quote block in our proposal or such other currency if permitted in writing by Firefly, in either case using the prevailing exchange rate at the date of the funds transfer;
d. into the bank account specified in writing by Firefly (from time to time);
e. in same day cleared funds; and
f. free and clear of any restriction, condition, set-off, deduction or withholding.
4.7 The Client must, at all times during the Campaign Term, provide a valid credit card to Firefly in order to cover the costs of all Campaign Disbursements, and irrevocably authorises Firefly to charge such credit card for the Campaign Disbursements as and when such disbursements fall due.
4.8 All Fees and Campaign Disbursements are exclusive of GST, except where stated otherwise in writing by Firefly.
4.9 If (for whatever reason) Firefly does not receive the Fees due to it under these Terms from the Client, or if the Campaign Disbursements are not paid by the Client, then Firefly (without prejudice to any of its other rights or remedies under these Terms or otherwise at law):
a. shall not be obliged to perform the Marketing Services unless and until the outstanding sum is paid; and
b. may (at its sole discretion) charge Default Interest on the outstanding sum for the period commencing on the due date for payment and ending on the date that the outstanding sum is paid by in full by the Client (including all Default Interest).
c. If we have taken action to recover overdue amounts from you, you are liable to pay any reasonable costs incurred by us in recovering the debt, including but not limited to any legal expenses and collection agency charges.
4.10 We facilitate ad spend on your behalf as your disclosed agent. We have no liability to pay these amounts arising in respect of the ad spend. These amounts of the outstanding monthly ad spend are totally and solely your responsibility. You must provide us with credit card information which we will make available to the relevant supplier of those services for payment of the monthly ad spend. If your credit card is declined for any reason, you must rectify the issue or provide us with an alternative payment method within 48 business hours.
You authorise us to disclose detail of your credit card to third parties for the purposes of this Agreement and indemnify us in respect of any claim or liability arising from the misuse of your credit card other than for our fraud or wilful misuse and release us from any claim or liability not indemnified.
4.11. If you authorise payments to be made by credit card or direct debit, then we may draw payments to such account as we determine, as and when those payments fall due without further notice to or approval from you, unless you expressly withdraw your authorisation in writing.
5. RIGHTS AND OBLIGATIONS OF FIREFLY
5.1 The Client hereby grants to Firefly all rights, powers and authorities necessary to provide (or procure the provision of) the Marketing Services.
5.2 If the Campaign includes the use of Ads, Firefly may (at its sole discretion) change the Ads used in the Campaign in order to comply with any applicable industry codes, good practice or legal requirements, provided that such changes do not materially affect the nature or scope of, or the charges for, the Campaign.
5.3 Firefly may, where required by a Client for a Campaign, apply tracking solutions in connection with its provision of the Marketing Services, including:
a. the use of tracking phone numbers that will be displayed to the caller in lieu of the Client’s (and/or its personnel’s) phone numbers (which shall be local numbers at first and, if local numbers are not available, toll free numbers), as well as call recording;
b. the use of tracking email addresses that will be used in order to be able to track emails of the Client and its personnel;
c. requiring users of the Client’s products and/or services to provide registration information;
d. the deployment of a click tracking code in order to track the pages accessed as a result of the Campaign; and
e. placing a frameset on the Client’s website with the tracking phone numbers and tracking email addresses, together with information pertinent to the Campaign and links to the Client’s website.
5.4 Firefly may undertake (at its sole discretion) credit checks in relation to the Client.
5.5 If, after the Commencement Date, the Client requests a change to the Ads to be used in the Campaign, Firefly shall (as soon as reasonably practicable following such request) provide to the Client:
a. the likely timeframe that it will take to implement the change;
b. any variations to or additional Fees that may be payable by the Client as a result of such change if the work is out of scope; and
c. any changes necessary to be made to the Digital Marketing Plan as a result of such change.
5.6 Firefly may charge to the Client the rate of NZ$150.00 per hour for its time spent in assessing and responding to a request made under clause 5.5, whether the Client proceeds with the change or not.
5.7 Firefly shall be permitted (at its discretion) to subcontract any person to provide all or any part of the Marketing Services at its sole discretion, provided that the entry into any subcontract will not relieve Firefly from liability for the performance of any of its obligations under these Terms.
6. Web design, landing pages and sales funnels
6.1 Where we agree to design and develop a landing page or sales funnel (Design Service), you agree:
a. to pay the fee upfront prior to the commencement of any work on the Design Service.
b You are entitled to one complimentary amendment to the Design Service. Any further amendments may be accommodated at our absolute discretion and may incur additional fees. If delays caused by you cause the Design Service to extend beyond the agreed delivery timeline by more than 6 weeks, we may terminate the Design Service and you will be responsible for the full Fees of the Design Service.
6.2 Where we agree to design and develop a website (Design Service), you agree:,
a. to pay, as a Setup Cost, 50% of the Fee for the Design Service prior to the commencement of any work on the Design Service; and
b. the remaining 50% of the Fee is due prior to the commencement of any work on the development stage (which may be detailed in our proposal).
c. You are entitled to one complimentary amendment to the Design Service. Any further amendments may be accommodated at our absolute discretion and may incur additional fees. If delays caused by you cause the Design Service to extend beyond the agreed delivery timeline by more than 6 weeks, we may terminate the Design Service and you will be responsible for the full Fees of the Design Service.
7. Google AdWords (Google Ads)
7.2 Where we agree to develop and implement an advertising campaign for you which uses the Google AdWords platform (AdWords Service), you agree that:
a. the Minimum Term of the AdWords Service is 6 months;
b. we may create a Google AdWords account on your behalf, including Google analytics if required (AdWords Account);
c. the AdWords Account is subject to Google’s Ts and Cs and advertising restrictions as modified from time to time;
d. in addition to the Fee for the AdWords Service, you are responsible for any charges imposed by Google in connection with the AdWords Service (AdWords Charge). If an AdWords Charge is not paid on demand, we may, without penalty, suspend your AdWords Service or any other Firefly Service until you pay the AdWords Charge. Notwithstanding the suspension of the AdWords Service or other Firefly Service, you must continue to pay the Fee for the relevant Firefly Service during that suspension);
e. we may delete the AdWords Account at any time without notifying you;
f. we do not warrant that the AdWords Service will generate any increase in your sales or business activity;
g. you will not hold us liable for any loss or damage arising from AdWords Service (other than as a result of our negligence); and
h. you acknowledge and agree that Google reserves the right to refuse an advertisement at any time, for any reason (Google Refusal) and that such refusal may be outside of our control.
Where we receive a Google Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that even if we receive a Google Refusal (other than as a result of our negligence), you remain responsible for the Fees for the AdWords Service.
7.3 You may pause a campaign whereby all work and Services are suspended subject to the following:
one (1) pause of up to two (2) months is available during the contract period;
a fee equal to 13.5% of the monthly Fee for the Service will be payable in advance;
for each pause enacted the term of the Contract will be automatically extended by the same period; and
7.4 Cancellation will automatically terminate all access to the campaign if we have created the Facebook business manager on your behalf.
7.5 If you terminate the Service prior to completion of the initial contract period or any roll over contract period, you will be charged an early termination charge.
The early termination fee represents the difference between the consideration (the value of work done) and the payment received to the point of termination. Due the nature of the Service this disparity is greater at the commencement of the campaign than at the conclusion.
The Consideration is calculated as follows:
Term of agreement
Termination fee
Up to 6 months
All outstanding invoices plus 28% of the total contract value for the service plus 12% of the full contract value for the service for each month remaining in the contract period.
More than 6-months
All outstanding invoices plus 28% of the total contract value for the service plus 6% of the full contract value for the service for each month remaining in the contract period.
Month-to-Month
No Early Termination Fee payable other than any outstanding invoices.
7.5 On termination of the PPC Service, all licenses granted to you under this Contract shall immediately terminate.
8. Search Engine Optimisation
8.1 Subject to the following and any express restriction in our Offer, we will provide services to optimise your website (SEO Service), in accordance with the performance guarantee and timeframe specified in our Offer (SEO Guarantee). We guarantee to rank at least 10% of proposed key phrases (or similar variant keywords that have ranked on page 1 from our efforts) on page 1 of Google (pages from New Zealand and Australia) within 90 days. If we do not achieve an SEO Guarantee within the relevant timeframe, we will continue to provide the SEO Service without further charge during the term of this Service until that guarantee is achieved.
You agree that:
a. the Minimum Term of the SEO Service is 12 months;
b. the SEO Guarantee does not apply where:
i. a new domain has been implemented without an existing domain redirecting to it; and
ii. you modify or remove the “on-page” optimisation work (including theme files and scripting) implemented by us;
c. the SEO Guarantee commences when we notify you that “on-page” optimisation (including content approval by you) is complete;
d. the SEO Guarantee ends at the end of the initial Minimum Term;
e. we make no warranty that the SEO Service will generate any increase in your sales or business activity;
f. you will not hold us liable for any loss or damage arising from the SEO Service (other than as a result of our negligence);
g. SEO Service is governed by many factors which are outside our control and may affect the ranking of your website/ overall performance of
SEO, including if:
i. your website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty
(either automatic or manual from Google), has an unnatural link profile or is hosted on a slow or blacklisted server; or
ii. we cannot get access to your website and/or its CMS;
h. Google continually updates its search algorithms, which may change the operation of any SEO Service resulting in a negative impact on your website rankings. In these circumstances, we will endeavour to rectify any negative impact as quickly as possible, but give no warranty that rankings will improve. In rare circumstances, we may have to move your website to a new domain to remove a penalty (and if so, you must accept this recommendation and agree to pay any associated costs for any SEO Guarantee to be applicable); and
i. we may place in each footer of your web pages (or mobile applications) our “Digital Marketing by Firefly” link.
j. Firefly retains the right to terminate the contract after 1 month of free work.
8.2 You may pause a campaign whereby all work and Services are suspended subject to the following:
one (1) pause of up to two (2) months is available during the contract period;
a fee equal to 13.5% of the monthly Fee for the Service will be payable in advance;
for each pause enacted the term of the Contract will be automatically extended by the same period; and
any warranty, guarantee or progress milestones offered in conjunction with the service will be immediately voided. You acknowledge that a pause to an ongoing SEO campaign can adversely influence the rankings of the website.
8.3 If you terminate the Service prior to completion of the initial contract period or any roll over contract period, you will be charged an early termination charge.
The early termination fee represents the difference between the consideration (the value of work done)and the payment received to the point of termination. Due the nature of the Service this disparity is greater at the commencement of the campaign than at the conclusion.
The Consideration is calculated as follows:
Term of agreement
Termination fee
Up to 6 months
All outstanding invoices plus 28% of the total contract value for the service plus 12% of the full contract value for the service for each month remaining in the contract period.
More than 6-months
All outstanding invoices plus 28% of the total contract value for the service plus 6% of the full contract value for the service for each month remaining in the contract period.
Month-to-Month
No Early Termination Fee payable other than any outstanding invoices.
9. Facebook Service
9.1 Where we agree to promote your business on Facebook and Facebook’s family of applications (including through advertisements and/or by use of Facebook Ads Manager) (Facebook Service) you acknowledge that the Facebook Service is subject to Facebook’s Ts and Cs and advertising restrictions as modified from time to time and Facebook reserves the right to refuse an advertisement at any time, for any reason (Facebook Refusal).
You agree that:
a. the Minimum Term of the Facebook Service is 6 months;
b. we will create a Facebook ad account on your behalf, including Facebook business manager if required (Facebook Account);
c. in addition to the Fees for the Facebook Service, you are responsible for any fees imposed by Facebook in connection with the Facebook Service (Facebook Fee). If a Facebook Fee is not paid on demand, we may, without penalty, suspend your Facebook Service (but the Monthly Fee for the Facebook Service will continue to be charged and payable during that suspension) until the Facebook Fee is paid;
d. we make no warranty that the Facebook Service will generate any increase in your sales or business activity; and
e. you will not hold us liable for any loss or damage arising from the Facebook Service (other than as a result of our negligence).
Where we receive a Facebook Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that
if we receive a Facebook Refusal (other than as a result of our negligence), you are still liable to pay the Fee for the Facebook Service.
9.2 You may pause a campaign whereby all work and Services are suspended subject to the following:
one (1) pause of up to two (2) months is available during the contract period;
a fee equal to 13.5% of the monthly Fee for the Service will be payable in advance;
for each pause enacted the term of the Contract will be automatically extended by the same period; and
9.3 Cancellation will automatically terminate all access to the campaign if we have created the Facebook business manager on your behalf.
9.4 If you terminate the Service prior to completion of the initial contract period or any roll over contract period, you will be charged an early termination charge.
The early termination fee represents the difference between the consideration (the value of work done)and the payment received to the point of termination. Due the nature of the Service this disparity is greater at the commencement of the campaign than at the conclusion.
The Consideration is calculated as follows:
Term of agreement
Termination fee
Up to 6 months
All outstanding invoices plus 28% of the total contract value for the service plus 12% of the full contract value for the service for each month remaining in the contract period.
More than 6-months
All outstanding invoices plus 28% of the total contract value for the service plus 6% of the full contract value for the service for each month remaining in the contract period.
Month-to-Month
No Early Termination Fee payable other than any outstanding invoices.
9.5 On termination of the PPC Service, all licenses granted to you under this Contract shall immediately terminate.
10. Remarketing Service
10.1 Where we agree to manage a remarketing campaign for you (Remarketing Service), you agree that:
a. the Minimum Term of the Remarketing Service term is 6 month;
b. the Remarketing Service will be subject to the Ts and Cs of the relevant remarketing platform (e.g. Facebook, Google AdWords and AdRoll or any similar platform (Platform)), and that each Platform reserves the right to refuse an advertisement at any time, for any reason (Platform Refusal).
c. if a Platform Refusal occurs, we will take reasonable steps to reverse that decision, however, we may not be successful and you agree that if we receive a Platform Refusal (other than as a result of our negligence), you are still liable to pay the Fees;
d. we make no warranty that the Remarketing Service will generate any increase in your sales or business activity;
e. you will not hold us liable for any loss or damage arising from the Remarketing Service;
f. in addition to our Fees for the Remarketing Service, you are responsible for payment of invoices generated by the Platform for their charges, including pay-per-click fees in respect of your Remarketing Service. If an invoice from the Platform is not paid when due, we may, without penalty, suspend your Firefly Services until that invoice is paid;
g. we may at our sole discretion allow you to update the creative content relating to the Remarketing Service every 90 days from the date we commence providing the Remarketing Service.
10.2 You may pause a campaign whereby all work and Services are suspended subject to the following:
one (1) pause of up to two (2) months is available during the contract period;
a fee equal to 13.5% of the monthly Fee for the Service will be payable in advance;
for each pause enacted the term of the Contract will be automatically extended by the same period; and
10.3 Cancellation will automatically terminate all access to the campaign if we have created the Facebook business manager on your behalf.
10.4 If you terminate the Service prior to completion of the initial contract period or any roll over contract period, you will be charged an early termination charge.
The early termination fee represents the difference between the consideration (the value of work done)and the payment received to the point of termination. Due the nature of the Service this disparity is greater at the commencement of the campaign than at the conclusion.
The Consideration is calculated as follows:
Term of agreement
Termination fee
Up to 6 months
All outstanding invoices plus 28% of the total contract value for the service plus 12% of the full contract value for the service for each month remaining in the contract period.
More than 6-months
All outstanding invoices plus 28% of the total contract value for the service plus 6% of the full contract value for the service for each month remaining in the contract period.
Month-to-Month
No Early Termination Fee payable other than any outstanding invoices.
10.5 On termination of the PPC Service, all licenses granted to you under this Contract shall immediately terminate.
11. OBLIGATIONS OF THE CLIENT
11.1 The Client must provide all reasonable support to Firefly in order to enable Firefly to provide the Marketing Services, including responding promptly to all requests for information from Firefly.
11.2 The Client must ensure that it does not offer products and/or services, whether via its website or otherwise, that are inconsistent with or may undermine the Campaign and/or the Marketing Services.
11.3 You agree that You own all intellectual property rights in any material provided to the Company.
12. WARRANTIES
12.1 Each Party warrants and represents to the other that:
a. it has full power and authority to enter into these Terms;
b. all consents, authorisations and approvals that are required in connection with the entry into these Terms have been obtained; and
c. the execution, delivery and performance of these Terms does not constitute a breach of any law or obligation by which that Party is bound.
12.2 To the fullest extent permitted by law, all warranties implied by statute or the common law are excluded by Firefly for the purposes of these Terms.
12.3 The Client acknowledges and agrees that, given the nature of the Marketing Services and despite Firefly performing its obligations under these Terms, Firefly provides no (and cannot provide any) warranty, representation or guarantee that the Marketing Services will deliver the Client’s anticipated or expected results for its business.
13. INTELLECTUAL PROPERTY
13.1 You are solely responsible for ensuring that you have all appropriate rights and licenses to any material provided to the Company (“Content”) that you supply, including but not limited to video, images and text.
13.2 We reserve the right, in our sole discretion, to refuse to use any Content we believe is objectionable or
which we believe may infringe upon the Intellectual Property Rights (“IPR”) of others or would be in breach
of our policies.
13.3 You agree to indemnify us against any claims arising out of or relating to your Content, advertising
keywords and your use of the campaign.
13.4 You expressly grant Firefly a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence
to use (and where necessary, cache) your Content.
13.5 Your access to, and continued use of, the Service is contingent upon, and at all times subject to, payment
of the Fees. Except as otherwise expressly stated in this Contract, no other rights, titles or interests in the
campaign are granted to you
13.6 Except where expressly agreed otherwise in writing by the Parties, the Client agrees that all Intellectual Property that arises, has arisen or will arise in connection with the Marketing Services shall be and remain owned by Firefly in all respects.
13.7 After the expiry of the Contract, all IP in the materials produced by us in connection with the Services (including websites, designs, information, reports and data) will be transferred to the Client subject to full payment of all Fees by the Client. Until such time, all IP rights will be retained by the Company.
13.8 The Client agrees to take all actions as may be reasonably required by Firefly to perfect or enforce Firefly’s title to the Intellectual Property, which shall include executing and delivering any document required in order to perfect or enforce such title (including a deed of assignment of intellectual property).
13.9 The Parties agree that the provisions of this clause shall survive the termination of these Terms.
14. TERMINATION
14.1 Either party can terminate a Contract for convenience with 30 days’ written notice, to take effect at the end of the term of a Fixed Term Contract or rollover term, or if there is no fixed term, at the end of the 30-day notice period.
14.2 At the end of the Initial Term, these Terms shall be deemed to automatically renew for successive Rollover Terms (without the requirement for notice) unless the Client, up until 10 Business Days before the expiry of the Initial Term, gives written notice of termination to Firefly, in which case these Terms shall terminate at the end of the Initial Term.
14.3 If you terminate a Fixed Term Contract before the end of its initial term, you will be charged an early termination charge set out in these terms and conditions.
Cancellation and Termination of Website Design Services
Date of Cancellation
Termination Fee
Before you receive the first draft of the website design
50% of Total Contract Value for a Fixed Term Contract
After you receive the first draft of the website design
80% of Total Contract Value for a Fixed Term Contract
After completion of the design review process
Total Contract Value for a Fixed Term Contract
Where “Total Contract Value” means the total Fees payable by the Client for the Services as set out in the Particulars.
14.3 During any Rollover Term, up until the date that is 20 Business Days before the expiry of that Rollover Term the Client may terminate these Terms by giving written notice of termination to Firefly, provided that it must pay to Firefly all Fees that it would have received for that Rollover Term had termination not occurred.
14.4 Firefly may, at any time during the Campaign Term, terminate these Terms for any reason by giving the Client not less than 5 Business Days’ prior written notice of termination.
14.5 If a Party commits a material breach of these Terms that:
a. is not remediable; or
b. is remediable, but the defaulting Party does not remedy that breach within five Business Days of being required to do so in writing by the non-defaulting Party,
then the non-defaulting Party may terminate these Terms with immediate effect by giving written notice of termination to the defaulting Party. For the avoidance of doubt, the failure by the Client to pay any Fees pursuant to clause 4 shall constitute a material breach for the purposes of this clause 9.6.
14.6 Upon the termination of these Terms, the following provisions shall apply:
a. Each Party will promptly deliver to the other Party all property, documents and materials belonging to the other Party that is in that Party’s possession or control.
b. The Client shall pay to Firefly, not later than 5 Business Days after the date of termination, all Fees owing to Firefly under these Terms.
c. All rights granted by the Client to Firefly under these Terms shall immediately cease, except to the extent that they relate to the recovery of Fees due to Firefly.
14.7 Termination of these Terms will not affect any accrued rights or obligations of any of the Parties.
14.8 The Parties agree that the provisions of this clause 9 shall survive the termination of these Terms.
15. LIMITATION OF LIABILITY
15.1 The maximum aggregate liability of Firefly under these Terms, whether arising in contract, tort (including negligence) or otherwise, is limited to the total management fees (excluding setup and one off work) actually received by Firefly during the 3 month period immediately prior to which the date on which the liability arose.
15.2 Firefly shall not be liable under these Terms for any indirect, consequential or special loss or damage, loss of revenue, economic loss or damage, loss of business or profits or anticipated business or profits, loss of goodwill, loss of anticipated savings or for any business interruption, whether or not that loss was, or ought to have been, contemplated by Firefly.
15.3 No claim may be made by the Client against Firefly under these Terms after the date falling 6 months after the alleged liability arose or 3 months after the date of termination of these Terms, whichever is earlier.
15.4 Firefly shall not be liable for any interference or restriction in the access to Ads and/or for the content of, or images and graphics on, the advertisements of the Client.
15.5 Firefly shall have no liability to the Client if the Client is subject to any internet fraud, cyber warfare, cyber attacks or cyber sabotage, spam attack and/or any other malicious activities.
16. INDEMNITY
16.1 The Client hereby indemnifies Firefly from and against any and all losses, damages, costs, actions, proceedings, claims and demands which Firefly incurs, suffers or is subject to (including any reasonable legal fees or amount paid by way of settlement) as a direct or indirect result of any failure by the Client to perform its obligations under these Terms or any negligent act or omission of the Client in the course of performing its obligations under these Terms.
16.2 The indemnity in clause 16.1 will continue to apply after termination of these Terms.
17. DISPUTE RESOLUTION
17.1 The Parties must use reasonable endeavours to resolve any and all Disputes by negotiation with one another.
17.2 If the Parties cannot resolve their Dispute by negotiations under clause 12.1 within 10 Business Days, either Party may, by written notice to the other, require that the Dispute be dealt with by mediation under the following terms:
a. The mediation shall be conducted in accordance with the Resolution Institution’s standard mediation agreement.
b. The mediation shall be conducted by a mediator and at a fee agreed in writing by the Parties. Failing agreement as to the mediator and fee within 10 Business Days, the mediator will be selected and his or her fee determined by the chairperson for the time being of the Resolution Institute (or his or her nominee).
c. The mediation shall take place in Auckland, New Zealand.
d. The costs of the mediation, excluding the Parties’ own legal and preparation costs, will be shared equally by the Parties.
17.3 No Party may initiate or commence court or arbitration proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 12, provided that application may still be made to the courts for interlocutory relief or to recover a debt payable.
17.4 The Client agrees that the fact and details of any Dispute shall constitute Confidential Information for the purposes of these Terms.
18. CONFIDENTIALITY
18.1 Except as permitted in this clause 18, the Client will not disclose, communicate or distribute to any third party any Confidential Information.
18.2 The Client will not have to observe any duty of confidentiality concerning Confidential Information that:
a. Firefly gives its prior written consent to the disclosure of;
b. is disclosed by the Client to any of its related companies (within the meaning given to that term in section 2(3) of the Companies Act 1993), directors, officers, employees or professional advisers, so long as they agree in writing to comply with the same obligations of the Client under this clause 18;
c. is required to be disclosed by law;
d. is necessary to be disclosed to enable the Client to perform its obligations under these Terms; or
e. at the time of disclosure is in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality under these Terms.
18.3 The restrictions in this clause 18 will continue to apply after the termination of these Terms.
19. NOTICES
19.1 All notices and other communications to be given under these Terms must be in writing and be addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party for such purpose.
19.2 Any notice or communication given under these Terms shall be deemed to have been received:
a. at the time of delivery, if delivered by hand;
b. three Business Days after the date of mailing, if sent by ordinary post within New Zealand;
c. 10 Business Days after the date of mailing, if posted or delivered overseas; or
d. if sent by email, on the date and time at which it enters the recipient’s information system, as evidenced (if requested by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender’s information system which indicates that the email was sent to the email address of the recipient.
19.3 Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.
20. GENERAL TERMS
20.1 These Terms, together with the Digital Marketing Plan, constitute the entire agreement and understanding of the Parties relating to the matters dealt with in these term and supersedes and extinguishes any previous agreement (whether oral or written) between the Parties in relation to such matters.
20.2 The Client may not assign or transfer, or agree to assign or transfer, any of its rights or obligations under these Terms without the prior written consent of Firefly.
20.3 No Party will be deemed to have waived any right under these Terms unless the waiver is in writing and signed by that Party.
20.4 These Terms may not be amended or varied in any way unless such amendment or variation is agreed in writing by each Party.
20.5 The Parties acknowledge and agree that the Client is entering into these Terms for the purpose of a business and, accordingly, the Consumer Guarantees Act 1993 does not apply to these Terms and/or the Marketing Services.
20.6 The Client shall not be entitled to set-off any payment due to be made to Firefly against any liability owed to it by Firefly under these Terms.
20.7 If any provision of these Terms is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from these Terms and the remaining provisions of these Terms will continue in full force and effect.
20.8 Unless otherwise expressly provided in these Terms, the rights and remedies set out in these Terms are in addition to, and not in limitation of, any other rights and remedies under or relating to these Terms (whether at law or in equity).
20.9 These Terms will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the New Zealand courts for any matter arising under or relating to these Terms.