1.1 In these Conditions, the following definitions apply:
Bonfire: Bonfire Creative Intelligence Limited registered in England and Wales with company number 04136188.
Bonfire Materials: all software, materials, equipment, documents and other property of Bonfire.
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 20.9.
Contract: the contract between Bonfire and Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from Bonfire.
Delivery Location: has the meaning set out in clause 6.1 or 6.2 (as applicable).
Estimate: the quotation and/or scope of work given by Bonfire for the supply of Goods and/or Services.
Force Majeure Event: has the meaning given to it in clause 20.1(a).
Goods: the goods (or any part of them) set out in the Specification and/or requested via the Order.
Hosting Services: the provision by Bonfire of web hosting Services of a digital nature so that it is stored and can be accessed on the world wide web by customers of Customer and the general public and Hosted Services shall mean Hosting Services actually provided by Bonfire to customer.
Inappropriate Content: has the meaning given to it in clause 13.6.
Input Materials: the documents, materials, artwork, property, data or other information or content used by Customer and/or provided to Bonfire from time to time as the case may be for use in the provision of the Goods and/or Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Key Contact: Customer’s contact at Bonfire as set out in the Order.
Order: Customer's order for the supply of Goods and/or Services as set out in Customer’s purchase order form.
Price: means the price for Goods and/or Services as determined in clause 11.
Services: the services, including (but not limited to) advertising, branding, consultancy services in business, marketing, design, strategy and planning; services and/or development services of a digital nature such as any website, online system, digital or mobile application to be created, developed and/or hosted by Bonfire pursuant to these Conditions; all documents, products and materials developed by Bonfire or its agents, contractors and employees in any form or media, including without limitation scripts, videos, films, drawings, maps, plans, diagrams, designs, pictures, prints, computer programs, software, data, scripting, specifications and reports (including drafts), market research, insight gathering and analysis; the generation of intellectual property and management and/or brokering of third party goods or services and Hosting Services, supplied by Bonfire to Customer as set out in the Specification.
Specification: any specification for the Goods and/or description or specification for the Services, including any relevant plans or drawings, set out in the Order or as otherwise agreed by the parties.
1.2 In these Conditions, the following rules apply:
(a) Clause headings are for reference only and shall not affect the interpretation of these Conditions.
(b) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(c) a reference to a party includes its personal representatives, successors or permitted assigns;
(d) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(e) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(f) a reference to writing or written includes emails.
2. Basis of contract
2.1 The Order constitutes an offer by Customer to purchase Goods and/or Services in accordance with these Conditions, deemed accepted when Bonfire issues written acceptance at which point and on which date the Contract shall come into existence.
2.2 The Contract constitutes the entire agreement between the parties. Bonfire’s employees or agents are not authorised to make any representations concerning Goods and/or Services unless confirmed by Bonfire in writing. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Bonfire which is not set out in the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.5 Once the Order has been accepted by Bonfire, the Contract may only be cancelled by Customer with Bonfire’s written agreement. All pre-payments are forfeited to Bonfire on cancellation and Customer shall indemnify Bonfire in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Bonfire as a result of cancellation.
3.1 Any Estimate given by Bonfire shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3.2 Where there is a conflict between the terms contained in these Conditions and the provisions of the Estimate, the terms of the Estimate shall take precedent.
3.3 Any typographical, clerical or other error or omission in any Estimate, Specification or other sales literature, estimate, quotation, invoice, drawings, document or information issued by Bonfire shall be subject to correction without any liability on the part of Bonfire.
4. Preliminary & Experimental Goods & Services
4.1 Any preliminary or experimental Goods produced or Services performed by Bonfire at the request of Customer, under the Contract or otherwise, shall be charged for at the same rates as set out in the Order and shall be supplied subject to these Conditions (Proof Goods or Services).
4.2 Customer shall be responsible for reviewing and approving any Proof Goods or Service where these are supplied by Bonfire to ensure that these are correct and meet all Customer requirements. Bonfire shall not be responsible for any errors in Goods and/or Services resulting from use of the Proof Goods or Services where Customer has not notified Bonfire of such errors before use, or if Customer has failed to approve the Proof Goods or Services.
4.3 Any corrections or amendments on or after approval of Proof Goods or Services, including alterations in style, made at the request of Customer will be subject to an additional charge.
5.1 The quantity, quality and description of and any specification for Goods and/or Services shall be those set out in the Specification. Customer shall be responsible for ensuring the accuracy of the terms of the Specification.
5.2 To the extent that the Goods are to be produced or manufactured in accordance with a Specification supplied by Customer, Customer shall indemnify Bonfire against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Bonfire in connection with any claim made against Bonfire for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Bonfire's use of the Specification. This clause shall survive termination of the Contract.
5.3 Bonfire shall use reasonable endeavours to provide the Services to Customer in accordance with the Specification in all material respects.
5.4 Bonfire reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
6. Delivery of Goods & Services
6.1 Subject to clause 6.2, Customer shall collect the Goods from the Bonfire's premises or such other location as may be advised by Bonfire before delivery (Delivery Location) within 3 Business Days of the Bonfire notifying Customer that the Goods are ready. A delivery note signed by Customer or its agent shall be conclusive proof of delivery.
6.2 If agreed between the parties, Bonfire shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Bonfire notifies Customer that the Goods are ready.
6.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
6.4 Any dates quoted for delivery of the Goods in accordance with clause 6.2 are approximate only, and the time of delivery is not of the essence.
6.5 If Bonfire fails to deliver the Goods in accordance with clause 6.2, its liability shall be limited to the costs and expenses incurred by Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
6.6 Bonfire shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or Customer's failure to provide Bonfire with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
6.7 If Customer fails to accept or take delivery of the Goods within 3 Business Days of Bonfire notifying Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Bonfire's failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 4th Business Day following the day on which Bonfire notified Customer that the Goods were ready; and
(b) Bonfire shall store the Goods until delivery takes place, and charge Customer for all related costs and expenses (including insurance).
6.8 Collection or acceptance of the Goods by Customer shall be of the essence of the Contract. If 10 Business Days after Bonfire notified Customer that the Goods were ready for delivery Customer has not accepted or taken delivery of them, Bonfire may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to Customer for any excess over the price of the Goods or charge Customer for any shortfall below the price of the Goods.
6.9 Customer shall not be entitled to reject the Goods if Bonfire delivers up to and including 10 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from Customer that the wrong quantity of Goods were delivered.
6.10 Bonfire may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other instalment.
6.11 Subject to clause 6.13, approval of the Services by Customer shall occur when the Services have passed the approval process (if any) as set out in the Order.
6.12 If any failure to approve the Services as set out in the Order results from a defect which is caused by an act or omission of Customer, or by one of Customer’s sub-contractors or agents for whom Bonfire has no responsibility (Non-Bonfire Defect), the Services shall be deemed to have been approved notwithstanding such Non-Bonfire Defect. Bonfire shall provide assistance reasonably requested by Customer in remedying any Non-Bonfire Defects by supplying additional services or products. If so requested, Customer shall pay Bonfire in full for all such additional services and products at Bonfire’s then current fees and prices.
6.13 Regardless of whether or not the Services are approved in accordance with clause 6.12, approval of the Services shall be deemed to have taken place upon the occurrence of any of the following events:
(a) Customer uses any part of the Services for any revenue-earning purposes or to provide any services to third parties other than for test purposes;
(b) Customer unreasonably delays approval for a period of 14 days from the date on which Bonfire is ready for the Services to be approved; or
(c) where no approval process is set out in the Order, upon Bonfire having performed the Services in accordance with clause 8.1.
7. Title and risk of Goods
7.1 The risk in the Goods shall pass to Customer at the time Bonfire notifies Customer that the Goods are available for collection or, if the Goods are to be delivered to a location other than Bonfire’s premises, at the time of delivery to that location, or if Customer wrongly fails to accept delivery of the Goods, the time of attempted delivery or the time Customer should have collected the Goods.
7.2 Title to the Goods shall not pass to Customer until Bonfire has received payment in full (in cash or cleared funds) for the Goods and any other goods that Bonfire has supplied to Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to Customer, Customer shall:
(a) hold the Goods on a fiduciary basis as Bonfire's bailee;
(b) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Bonfire's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Bonfire's behalf from the date of delivery;
(e) notify Bonfire immediately if it becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(l);
(f) give Bonfire such information relating to the Goods as Bonfire may require from time to time; and
(g) not incorporate them into any other goods,
but Customer may resell or use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to Customer, Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(l), or Bonfire reasonably believes that any such event is about to happen and notifies Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Bonfire may have, Bonfire may at any time require Customer to deliver up the Goods and, if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored in order to recover them.
7.5 Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Goods which remain the property of Bonfire, but if Customer does so, all monies owing by Customer to Bonfire shall (without prejudice to any other rights or remedies of Bonfire) forthwith become due and payable.
8. Supply of Services
8.1 Bonfire shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. Services production timelines may also vary due to input and approvals required from Customer at each stage of the process.
8.2 Bonfire shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Bonfire shall notify Customer in any such event.
8.3 Customer acknowledges and agrees that Bonfire may provide Services to other persons or businesses, including those in the same or similar line of business, as Customer.
9. Input Material
9.1 Customer shall be responsible for the accuracy of all Input Materials.
9.2 Any Input Materials shall be held and worked upon entirely at Customer’s risk and Bonfire shall have no liability for any damages, costs, losses and expenses or other claims which may occur in respect of such Input Materials or arising from any Input Material published via the Services from instructions supplied by Customer or Input Material which is defective, incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form.
9.3 Input Materials will be presumed by Bonfire to be correct, unless specific details of any correction are supplied in writing to Bonfire in good time prior to the relevant Goods or Services being supplied.
9.4 It is Customer’s responsibility to ensure that Input Material submitted to Bonfire is suitable for the Goods and/or Services to be supplied. Whilst Bonfire will make reasonable efforts to obtain the best colour reproduction of photographic originals, it does not guarantee an exact match in texture or colour between Customer’s original, whether photograph or transparency and the finished article and excludes liability for unsatisfactory results directly or indirectly caused by inferior or unsuitable photographic original Input Material.
9.5 Where Input Materials are supplied by Customer on disk or via email or any other electronic format or media, Bonfire will not be responsible for any errors or damage to or degradation of data that may occur through either operator error during origination or incompatibility of systems or software or damage or data corruption caused by computer virus, worm, or any software or hardware process or malfunction. Bonfire shall have no liability to Customer for any loss, cost, charges, expense or damage incurred as a result of any Input Material being infected or corrupted.
9.6 Bonfire reserves the right to reject any Input Materials supplied by or instructions given by Customer which Bonfire, at its sole discretion, considers to be unsuitable.
9.7 Bonfire shall have no liability for loss or accidental damage of Input Materials. Customer shall at its own expense retain duplicate copies of all Input Materials and insure them against accidental loss or damage by Bonfire. Any liability which Bonfire may be found to have in respect of the Input Material shall be limited to the open market value of the Input Materials only.
10. Customer's obligations
10.1 Customer shall:
(a) ensure that the terms of the Order, Input Materials and (if submitted by Customer) the Specification are complete and accurate;
(b) ensure that the Goods and/or Services are sufficient and suitable for its purposes and meets its requirements;
(c) co-operate as required by Bonfire in all matters relating to the provision of Good and/or Services;
(d) comply and shall procure that its employees, agents, contractors and customers comply with any security requirements of Bonfire;
(e) prepare and provide Bonfire, its employees, agents, consultants and subcontractors, with access to Customer's premises, office accommodation and other facilities as reasonably required by Bonfire to provide the Goods and/or Services;
(f) provide Bonfire in a timely manner, and at its own expense, such information and materials as Bonfire may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and/or Services before the date on which the Goods are to be provided or the Services are to start;
(h) keep and maintain Bonfire Materials at Customer's premises in safe custody at its own risk, maintain Bonfire Materials in good condition until returned to Bonfire, and not dispose of or use Bonfire Materials other than in accordance with Bonfire's written instructions or authorisation; and
(i) follow all Goods and/or Services guidelines, procedures, storage and usage instructions. Customer acknowledges and agrees to ensure that it is aware of all and any guidelines, procedures, storage and usage instructions applicable to the Goods and/or Services.
10.2 If Bonfire's performance of any of its obligations in respect of the Goods and/or Services is prevented or delayed by any act or omission by Customer or failure by Customer to perform any relevant obligation (Customer Default):
(a) Bonfire shall without limiting its other rights or remedies have the right to suspend delivery of the Goods or performance of the Services until Customer remedies Customer Default, and to rely on Customer Default to relieve it from performance of any of its obligations to the extent Customer Default prevents or delays Bonfire's performance of any of its obligations;
(b) Bonfire shall not be liable for any costs or losses sustained or incurred by Customer arising directly or indirectly from Bonfire's failure or delay to perform any of its obligations as set out in this clause 10.2; and
(c) Customer shall reimburse Bonfire on written demand for any costs or losses sustained or incurred by Bonfire arising directly or indirectly from Customer Default.
11. Charges and payment
11.1 The price for Goods shall be the price set out in the Order, or as otherwise agreed between the parties. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods.
11.2 Customer shall pay the Services cost and related expenses in accordance with the Order or as otherwise agreed. Where the Services are provided for at a fixed price the total price for the Services shall be the amount set out in the Order or as otherwise agreed between the parties. The total price shall be paid to Bonfire (without deduction or set-off) in accordance with clause 11.12. All fixed prices quoted in the Estimate are valid for 30 days or until earlier acceptance by Customer, after which time they may be altered by Bonfire without giving notice to Customer.
11.3 Where the charges for Services are on a time and materials basis the charges shall be calculated in accordance with Bonfire's fee rates, as set out in the Order and Bonfire shall be entitled to charge Customer for any expenses reasonably incurred by the individuals whom Bonfire engages in connection with the Services, and for the cost of services provided by third parties and required by Bonfire for the performance of the Services, and for the cost of any materials.
11.4 Bonfire reserves the right to increase the price of the Goods and/or Services, by giving notice to Customer at any time before delivery, to reflect any increase in the cost of the Goods or Services to Bonfire that is due to:
(a) any factor beyond the control of Bonfire (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Specification; or
(c) any delay caused by any instructions of Customer in respect of the Goods or Services or failure of Customer to give Bonfire adequate or accurate information or instructions in respect of the Goods or Services.
11.5 Any queries in relation to the price quoted or invoiced by Bonfire must be raised by Customer within 7 days of receipt, and if no such query is raised then the price and amount quoted or invoiced is deemed to be agreed.
11.6 If Bonfire requests a change to the scope of the Services, Customer shall not unreasonably withhold or delay consent to it.
11.7 If Customer wishes Bonfire to proceed with the change, Bonfire has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
11.8 Bonfire shall usually invoice Customer for the Goods and/or Services as otherwise set out in the Order, however, Bonfire shall at all times reserve the right to invoice Customer monthly in arrears.
11.9 Customer shall pay each invoice submitted by Bonfire within 30 days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by Bonfire. Time for payment shall be of the essence of the Contract.
11.10 All amounts payable by Customer under the Contract are exclusive of amounts in respect of value added tax (VAT) chargeable from time to time. Where any taxable supply for VAT purposes is made under the Contract by Bonfire to Customer, Customer shall, on receipt of a valid VAT invoice from Bonfire, pay to Bonfire such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.11 Without limiting any other right or remedy of Bonfire, if Customer fails to make any payment due to Bonfire under the Contract by the due date for payment as set out in clause 11.9 (Due Date), Bonfire shall have the right to charge interest on the overdue amount at the rate of 5% per annum above the then current HSBC Bank PLC's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly (a part month being treated as a full month for the purpose of calculating interest).
11.12 Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and Customer shall not be entitled to assert any credit, set-off or counterclaim against Bonfire in order to justify withholding payment of any such amount in whole or in part. Bonfire may, without limiting its other rights or remedies, set off any amount owing to it by Customer against any amount payable by Bonfire to Customer.
12. Intellectual property rights
12.1 Customer retains all Intellectual Property Rights in the digital content or digital software existing prior to this agreement and owned by, or licensed by third parties to, Customer (Pre-Existing Content and Software) and Input Materials, and in the event that Customer owns the Intellectual Property Rights in the Services, Customer grants Bonfire an unlimited licence to such Intellectual Property Rights in the, Pre-Existing Content and Software Input Materials and such other Services to the extent required to perform its obligations pursuant to the Contract.
12.2 Customer shall indemnify Bonfire against all damages, costs, losses and expenses (including reasonable legal fees) arising as a result of any action or claim that the Pre-Existing Content and Software or Input Materials infringe any Intellectual Property Rights of a third party.
12.3 All Intellectual Property Rights in any works arising in connection with the performance of the Services by Bonfire (Works) shall be the property of Bonfire, and Bonfire hereby grants to Customer a non-exclusive licence to such Intellectual Property Rights solely for the purposes as set out in the Contract.
12.4 Bonfire shall indemnify Customer against all damages, losses and expenses (including reasonable legal fees) arising as a result of any action or claim that the Works infringe the Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 12.2.
12.5 The indemnities in clause 12.2, clause 12.4, and clause 13.9 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the action or claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
12.6 The indemnities in clause 12.2, clause 12.4, and clause 12.9 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
12.7 Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Goods and/or Services, Customer's use of any such Intellectual Property Rights is conditional on Bonfire obtaining a written licence from the relevant licensor on such terms as will entitle Bonfire to license such rights to Customer.
12.8 All Bonfire Materials are the exclusive property of Bonfire.
12.9 Where text, pictures, artwork or other artistic material is supplied by Customer for printing in a final form so that Bonfire has to make no substantial alteration to the layout or content, copyright and other intellectual property rights in the material shall be and remain the property of Customer.
12.10 Where Bonfire designs or substantially alters the layout of any text, pictures, artwork, or other artistic material before printing, Intellectual Property Rights in the finished product shall be and remain the property of Bonfire.
12.11 With the exception of trademarked, copyrighted or other proprietary information regarding pictures, images or logos that directly identify Customer, Customer grants Bonfire the right to use, transfer, modify and maintain content prepared by Bonfire in respect of the Services.
12.12 Bonfire reserves the right to refuse to undertake work which infringes or it suspects to infringe the Intellectual Property Rights of a third party.
12.13 For the avoidance of doubt, Bonfire does not waive all or any of its moral rights in the Works.
13. Hosting Services
13.1 Bonfire may, at its complete discretion, either provide itself, or use any third party supplier to provide, the Hosting Services on Bonfire’s behalf in whole or in part.
13.2 Customer acknowledges and accepts that Bonfire cannot guarantee uninterrupted, timely or error-free access to the Hosted Services due to Force Majeure Events and/or scheduled engineering, maintenance or upgrades to third party equipment and servers, interruptions or errors caused by, or as a result of, third party suppliers or other circumstances beyond Bonfire’s control, however Bonfire shall use reasonable endeavours to:
(a) Minimise the amount of downtime of the Hosted Services;
(b) Schedule engineering, maintenance or upgrades to equipment to times outside of business hours; and
(c) Provide Customer with as much advance warning of any planned engineering, maintenance or upgrades;
13.3 Upon the instructions of and at Customer’s cost, Bonfire shall put in place back-up and disaster recovery procedures with the aim of ensuring that the Hosted Services are available and operational in the event of loss, damage, corruption, deletion or misuse of the Hosted Services, however Customer shall also ensure that it has in place a suitable procedure to ensure it has sufficient back-ups with the frequency that it requires.
13.4 Customer acknowledges and accepts that Bonfire cannot guarantee the confidentiality or safety of any the software for the Hosted Services commissioned by Customer, Input Material or other information or material uploaded to the Hosted Services from computer hackers.
13.5 Customer acknowledges and accepts that upon reasonable notice Customer shall comply with such reasonable additional obligations, requirements and/or restrictions as may be imposed by third party suppliers upon Bonfire in relation to the Hosting Services.
13.6 Where Customer requests the Hosting Services and/or ongoing content management support within the Order, once the Services have been accepted in accordance with clause 6, Bonfire shall update the Hosted Services with Input Materials provided from time to time by Customer in accordance with the Order and/or Specification. Customer shall ensure that Input Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights or otherwise not in conformity with the policies and style of Bonfire) (Inappropriate Content).
13.7 Customer acknowledges that Bonfire has no control over any content placed on the Hosted Services, by visitors to the Hosted Services, and does not purport to monitor the content of the Hosted Services. Customer acknowledges and accepts full responsibility for any content (including Inappropriate Content) and/or information placed on the Hosted Services. Bonfire reserves the right to remove content from the Hosted Services where it reasonably suspects such content is Inappropriate Content but assumes no responsibility to do so. Bonfire shall notify Customer if it becomes aware of any allegation that content on the Hosted Services may be Inappropriate Content.
13.8 Bonfire shall have the right to approve the design, content and links to and from Customer’s Hosted Services, but assumes no responsibility to do so. Customer agrees to be solely responsible for the content of its Hosted Services and the accuracy of all information provided therein.
13.9 Customer shall indemnify Bonfire against all damages, costs, losses and expenses (including reasonable legal fees) arising as a result of any action or claim that Customers Materials or any other material posted to, or linked to, the Hosted Services whether by visitors to the Hosted Services, Customer or any third party, constitutes Inappropriate Content.
14.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 14 shall survive termination of the Contract.
14.2 Customer agrees that, for general marketing and promotional purposes, Bonfire may disclose, or otherwise make available, Customer’s name and details of the Goods and/or Services Bonfire has carried out on Customer’s behalf and the general impact such Goods and/or Services have had on Customer’s business.
15.1 No Goods are manufactured or printed by Bonfire. All warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.2 Bonfire shall, where reasonably possible, assign to Customer the benefit of any warranty or guarantee given by the manufacturer to Bonfire.
15.3 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Bonfire.
15.4 Bonfire warrants to Customer that the Services will be provided using reasonable care and skill.
15.5 If the Services of a digital nature do not perform substantially in accordance with the Specification for a period of 90 days from approval in accordance with clause 6, Bonfire shall, for no additional charge, use its reasonable endeavours to carry out any work necessary in order to ensure that the Services of a digital nature substantially comply with the Specification.
15.6 Clause 15.5 shall not apply to the extent that any failure of the Services of a digital nature to perform substantially in accordance with the Specification is caused by the software for the Services of a digital nature existing prior to this agreement and owned by, or licensed by third parties to, Customer or any Input Materials, including any upgrade or change to the software for the Services of a digital nature used by Customer to perform the Services of a digital nature.
15.7 Customer warrants to Bonfire that the Input Materials are free of defects and deficiencies. The correction of any defects or deficiencies not included in the Contract shall be the sole responsibility of Customer. If such work is to be carried out by Bonfire it shall be the subject of a separate contract and charged on a time and material basis at Bonfire’s current rates for such work.
16. LIABILITY - CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
16.1 Nothing in these Conditions shall limit or exclude Bonfire's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
16.2 Subject to clause 16.1:
(a) Bonfire shall under no circumstances whatever be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, loss of operation time or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses arising under or in connection with the Contract; and
(b) Bonfire's total liability to Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to 100% of the price paid by Customer for the Goods and/or Services.
16.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law in relation to the supply of Goods and/or Services are, to the fullest extent permitted by law, excluded from the Contract.
16.4 This clause 16 shall survive termination of the Contract.
17. Term & Termination
17.1 In relation to the Hosting Services the Contract shall commence as specified in the Order and/or Specification, and shall continue until termination pursuant to this clause 17.
17.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 Business Days, or such other period as may be agreed between the parties, after receipt of notice in writing of the breach, which must be given by the serving party within 7 days of the breach occurring;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2(b) to clause 17.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
17.3 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other not less than 30 days’ written notice or other such period of notice as maybe agreed between the parties.
17.4 Without limiting its other rights or remedies, Bonfire shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between Customer and Bonfire if:
(a) Customer fails to pay any amount due under the Contract on the due date for payment;
(b) Customer refuses to remove or consents to the removal of any Inappropriate Content in the Input Material; or
(c) Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(l), or Bonfire reasonably believes that Customer is about to become subject to any of them.
17.5 For the avoidance of doubt, and without limiting its other rights or remedies, if Customer becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(l), Bonfire shall have the right to submit outstanding invoices to any administrator, receiver, executor or other person in charge of the Customer’s affairs for payment.
18. Consequences of termination
18.1 On termination of the Contract for any reason:
(a) Customer shall immediately pay to Bonfire all of Bonfire's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Bonfire shall submit an invoice, which shall be payable by Customer immediately on receipt;
(b) Customer shall return all of Bonfire Materials and any Goods which have not been fully paid for. If Customer fails to do so, then Bonfire may enter Customer's premises and take possession of them. Until they have been returned, Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
(c) all licences granted by Bonfire under these Conditions shall terminate immediately;
(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
19. Disputes & Claims
19.1 Customer shall provide Bonfire with reasonable written particulars of any claims based on defect in the quality, condition or performance of Goods and/or Services or their failure to correspond with their specification (whether or not delivery or performance is refused) within 14 days from the date of delivery or performance or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
19.2 Bonfire shall have no liability for such defect or failure in the Goods or performance of the Services if delivery or performance is not refused, and Customer does not notify Bonfire in accordance with clause 19.1. In such circumstances, Customer shall be deemed to have accepted the Goods or Services and will be liable to pay the Price as if Goods or Services had been delivered or performed in accordance with the Contract.
19.3 Where, at the sole discretion of Bonfire, any valid claim based on any defect in Goods or the performance of Services is notified to Bonfire in accordance with these Conditions, Bonfire shall be entitled to replace or repair Goods or re-perform Services free of charge or, at Bonfire’s sole discretion, refund to Customer the Price (or a proportionate part of the Price), but Bonfire shall have no further liability to Customer.
20.1 Force majeure:
(a) For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of Bonfire including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Bonfire shall not be liable to Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Bonfire from providing any of the Services and/or Goods for more than 30 days, Bonfire shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to Customer.
20.2 Under no circumstances shall Bonfire or its agent be liable to Customer for any network interruptions beyond Bonfires control including without limitation, any downtime regarding computer servers or interruption of Internet service providers.
20.3 Assignment and subcontracting:
(a) Bonfire may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) Customer shall not, without the prior written consent of Bonfire, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business and, if notice is to be given to Bonfire, marked for the attention of the Key Contact or sent by email to the email addresses as advised by the parties from time to time. Unless otherwise specified, notice to Bonfire should be sent to email@example.com (the Business Administration Team) and the Key Contact’s email address as set out in the Order.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by email, on the next Business Day after transmission.
(c) This clause 20.4 shall not apply to the service of any proceedings or other documents in any legal action.
20.5 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20.7 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
20.8 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
20.9 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Bonfire.
20.10 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.