Flow Marketing Terms and Conditions.
Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
‘The Client’ or ‘You’ or ‘Your’: The company or individual requesting the services of Flow Marketing.
‘The Company’, ‘Us’, ‘Our’ or ‘We’: Flow Marketing & employees or affiliates.
Flow Marketing will carry out work only where an agreement is provided either by email, telephone, mail or in personal meetings. An ‘Order’ is deemed to be a written or verbal contract between Flow Marketing and the client. This includes telephone and email agreements.
The Terms and Conditions can be read on Flow Marketing’s website. When required, Flow Marketing will provide the Client with a written estimate or quotation. In instances where estimates or quotations are provided, a copy is to be signed, dated (physically or electronically) and returned by the Client to Flow Marketing. Alternatively, the Client may send a written confirmation in reply to the estimate or quotation which binds the client to accept Flow Marketing terms and conditions. It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. Any instructions received by Flow Marketing from the Client for the supply of goods and or services, shall constitute acceptance of the terms & conditions contained herein.
If a Client accepts a quote, then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
Flow Marketing retains full ownership of all work including concepts, mock-ups, creatives, code, programs, websites and marketing IP and material until full payment is made.
Late payments on all services incur a late fee of 18%p.a (we divide the number of days late by 365, then multiply by 18%, adding the total to a client’s next invoice).
The client understands that when Flow Marketing is working on a website that was not initially created by Flow Marketing, we accept no responsibility for issues with the site that would not have otherwise occurred if it was created by Flow Marketing.
Flow Marketing cannot take responsibility for any copyright infringements caused by materials submitted by the client. Flow Marketing reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.
Any additions to briefs provided will be carried out at the discretion of Flow Marketing and may involve an added expense. Flow Marketing cannot guarantee to meet deadlines and quotes when the client makes alterations to the initial brief.
The client agrees to make available as soon as is reasonably possible to Flow Marketing all materials required to complete the site to the agreed standard and within the set deadline.
Flow Marketing will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
Flow Marketing will not be liable or become involved in any disputes between the site owner and their clients and cannot be held responsible for any wrongdoing on the part of a site owner. E.g. Any disputes regarding content/images that have been provided to us for inclusion on the site.
Once any work has been completed the final balance of payment is then due in accordance with Flow Marketing’s payment terms. There are no exceptions to this, i.e. If the client decides they no longer want the design or website, as they have commissioned the work and in some cases, paid a deposit, they are still obliged to pay for the work that has been done. Non payment may result in necessary action being taken. Once full payment is received for a website, it is assumed that the project has been completed to the client’s satisfaction and no refunds can be offered.
A link to Flow Marketing’s website will appear in either small type or by a small graphic at the bottom of the Client’s website in any new builds. If a client requests that the design credit be removed, a nominal fee of 10% of the total development charges will be applied. The Client also agrees that the website developed for the Client may be presented in Flow Marketing Limited’s portfolio.
Any site scripts, applications or software (unless specifically agreed) written by Flow Marketing remain the copyright of Flow Marketing and may only be commercially reproduced or resold with the permission of Flow Marketing
The client is expected to test fully any application or programming relating to a site developed by Flow Marketing before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Flow Marketing will endeavor within reason to correct these issues to meet the standards of function outlined in the brief.
Flow Marketing will endeavor to ensure that any developed/designed site or application will function correctly on the server it is initially installed in. All websites will function correctly when viewed on the two latest versions of Safari, Internet Explorer, Chrome, and Firefox on mobile, tablet and PC in order to be signed off.
Flow Marketing will endeavor to meet or exceed industry standard levels of service and reliability with regards to website/email hosting, including digital monitoring of website uptime 24/7 (with email alerts sent to Flow Marketing and the Client, if requested), ensuring minimal downtime is experienced. No guarantees can be made as to the availability or interruption of this service due to external influencing factors.
Flow Marketing reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate the hosting service if this is the case.
Where applications or sites are developed on servers not recommended by Flow Marketing, the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the client’s responsibility to provide a suitable testing environment identical to the final production environment.
Websites and email accounts can be hosted with third party providers and clients are not obligated to host with Flow Marketing. In this instance, Flow Marketing will deliver all website files to the Client upon full payment of the account and once the client has advised in writing that they are satisfied with the website, as it displays and functions on the Flow Marketing test server. In doing so, Flow Marketing waivers all responsibility for the hosting of the website.
If the Client wishes to host their email account(s) with a third party hosting company, Flow Marketing waiver all responsibility for the delivering and receiving of emails. Flow Marketing will test email functionality on Flow Marketing servers to ensure that the email system is working correctly before handing over to the Client.
Flow Marketing’s search engine optimisation is a service that is separate to website design and development.
Flow Marketing uses ‘white hat techniques’ when optimising websites, always aiming to achieve improved rankings for a website within six months of undertaking the optimisation process.
Website optimisation can provide a good SERP (search engine ranking position), meaning it is easier for potential clients to find a Client’s service. The Client accepts that external factors to Flow Marketing, such as pricing, customer service and other factors all play an important part in generating new business.
Where the client employs Flow Marketing to manage ongoing digital marketing including marketing on search and social platforms, the following terms apply:
The Client agrees to have a pre-agreed advertising spend for each month. If and when that credit runs out, ads will cease to display on the relative ad network until the budget is renewed at the beginning of the following month. If the client wishes to increase the monthly spend, they must first discuss with Flow Marketing. The monthly spend will be invoiced by Flow Marketing, including any management fees.
Flow Marketing can make some predictions about the potential website traffic gains the Client can expect while the digital marketing is in progress. The Client accepts that Flow Marketing makes no guarantees or predictions in regards to earnings and/or conversions.
The Client will have the opportunity to review advertisements before they go live. It is the Client’s responsibility to ensure that no incorrect or misleading information features in the advertisements.
Where the client employs Flow Marketing to manage their social media platforms such as Facebook, Instagram, Google Plus or any other profile, the following terms apply:
Please allow a minimum of 10 working days to allow for appropriate setup of any profiles, gathering of information and appropriate research in order to establish/optimise your profiles for best promotion and form creatives and copy for initial content and promotion.
Approval of Content:
The Client will have the opportunity to approve content on a monthly basis before the content goes live. In some cases, the Client may give clearance for Flow Marketing to make updates without the content being approved prior to it being posted online.
Flow Marketing reserves the right to use any social media profiles under Flow Marketing management as marketing material, including the disclosure that the profile is being managed by Flow Marketing.
Access to accounts:
The Client must give Flow Marketing access to their social platform accounts in order for us to manage their account.
Cancelling of social management plans:
After the initially agreed campaign term (minimum three months), the Client may cancel their plan at any time, but must give 45days’ (roughly six weeks) notice of the cancelling of the plan, as we endeavor to forward plan whenever possible. If the Client removes access from the account without giving 45days’ notice to end the contract, the Client is still liable for any outstanding invoices issued by Flow Marketing.
The client may be exposed to content posted by other users that may be offensive, indecent or objectionable. Under no circumstances will Flow Marketing be liable in any way for any content posted by any user or third party, including, but not limited to, liability for any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted. Flow Marketing will not be held responsible for non-compliance of social media channel policies in which violations of those policies may result in closure or suspension of client accounts.
The Client may cancel their AdWords plan at any time, but must give 60 days’ (roughly two months) notice of the cancelling of the plan. If the Client wishes to cancel the campaign without giving 60 days’ notice to end the contract, the Client is still liable for management fees (not actual ad spend) due to Flow Marketing. You must advise Flow Marketing of the intention to cease your AdWords campaign.
The Client can increase monthly spend at any time during the advertising term. If the Client decides to upgrade part way through the month, the “pro-rata” amount for the remainder of the month will be calculated and added to the next month’s invoice.
Your AdWords campaign will ideally commence on the 1st of any calendar month, however if you wish to launch part way through the month, we will work out your monthly fee on a percentage-of-month basis. New AdWords account establishment may take up to ten working days.
The monthly payment to Flow Marketing for Google AdWords marketing is due prior to campaign commencement each month and will cover ad spend, management, monitoring, and all maintenance. For budgets up to $1000 per month (excluding gst), a 40% management fee will be in place. For budgets over $1000 per month (excluding gst) a 30% management fee will be in place.
AdWords will remain paused if payment is delayed or declined until full payment is received, however monthly management fees will still be due.
During The Campaign
Flow Marketing is not able to guarantee when and in what position your ads will display, as Google AdWords utilises a dynamic auction model based on algorithms to determine AdRank. We will optimise your campaign to suit your end goal.
Flow Marketing will endeavour to use industry best practices and will not be held liable for guaranteed results due to factors outside of our control. Examples of these situations include keyword competition, client budget limitations, client’s value proposition relative to competitors, etc. Advertising holds many influencing variables and you, the client, indemnify us from any liability for business incurred from online marketing activities we undertake on your behalf.
Flow Marketing will do its best to allocate the full extent of your AdWords click budget to Google. There may be instances in which this is not possible due to factors like low search volumes, keyword competition, and market conditions. Improved campaign performance will often result in your desired advertising results being achieved while saving on your allocated budget.
Flow Marketing may be representing other businesses within the same industry. Flow Marketing will not disclose any information to any third party without prior consent unless required to by law.
Once your campaign has concluded, your AdWords campaign will terminate and any relevant landing pages will be taken down. AdWords account formation, landing page design, development, and content created by Flow Marketing is intellectual property of Flow Marketing. If you wish to retain any of the IP Flow marketing has established, this can be purchased at a mutually agreed amount, usually equal to the hours required for us to set it up at our standard hourly rate or in some instances at resale value.
Flow Marketing owns the rights to keep all client metrics of each campaign for reporting purposes. This includes sales, lead conversion statistics, and revenue estimates. We reserve the right to publish these figures, but will seek permission before using them.
Calls received by Flow Marketing’s call tracking service may be recorded for the purposes of tracking the origin of phone calls during a campaign. It is a legal requirement that in order to record a phone call, at least one person involved in the conversation must be informed. If call recording is in place, the caller will be informed that the call is being recorded for quality assurance purposes before the call is directed to your targeted number. It is your responsibility to inform your staff, contractors, and team members that all calls are being recorded for quality and training purposes.
Flow Marketing takes all practical steps to ensure call quality is that of normal industry standard. Any variances in call timing or quality are beyond our control and we can not be held responsible should it occur.
Phone tracking is set up for the call to redirect to a single number. Flow Marketing can setup multiple phone numbers for different marketing channels. Tracking numbers are generated at random. We will do our best to use the area code that the business resides in.
Standard phone tracking includes a local-geo tracking number (e.g. 09, 03, etc.) that redirects the call to your business’s local geo number.
If you require a 0800 number to redirect to your business’s local-geo number, this can be arranged at an additional cost, please contact us discuss further.
If you exceed your allocated call time, an additional charge per minute will be added to your monthly AdWords campaign management fee. Please refer to our standard pricing card for details.
The copyright in any creative work resulting from services supplied by Flow Marketing remains the property of Flow Marketing until payment is received in full. Upon final payment of all monies due under these Terms and Conditions of Trade, limited copyright ownership passes to you on the following conditions:
Flow Marketing and the client will cooperate in finding a suitable time at which to provide the services outlined, and any specific deadlines. Flow Marketing will permit the rescheduling of coordinated tasks, except in the 48 hours leading up to the agreed time. If a client wishes to reschedule within 48 hours of the originally scheduled arrangements, Flow Marketing reserves the right to charge a rebooking fee. This rebooking fee will vary depending on the distance we have travelled / extend to which we have planned to facilitate the provision of the service.
Once ownership of any work is accepted and transferred to the Client, the Client accepts the standard of quality and functionality of the work and agrees that any further modifications will be made at our standard hourly rate. In instances where technical issues arise, with Flow responsible directly, these will be rectified within reason at no expense to the client.
Flow marketing is reachable between the hours of 8am-4.30pm, Monday to Friday by phone, and 24/7 via email. We will endeavor to respond to all email requests in a timely manner.
The Client shall limit liability to Flow Marketing, its partners and independent contractors from and against any and all demands, claims, damages to persons or property, losses and liabilities including reasonable professional fees arising out of or caused by Flow Marketing, its employees, agents and others acting on its behalf, actions in connection with the preparation and providing of the services.
Therefore, Flow Marketing hereby excludes itself, its Employees and or Agents from all and any liability from loss or damage caused by any inaccuracy, omission, delay or error, whether the result of negligence or other cause in the production of any works.
Whilst every endeavor will be made to ensure that all work including creatives, copy, marketing activities, websites and any scripts or programs are free of errors, Flow Marketing cannot accept responsibility for any costs incurred, compensation or loss for the loss of turnover, sales, revenue, profits or indirect, consequential or special loss due to the unavailability of the site, its servers, software or any material provided by its agents. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client in ensuring that all work is functioning correctly before utilisation.
Flow Marketing uses industry best practices and is regularly monitoring search and social algorithms. Due to the constantly evolving nature of these algorithms, Flow Marketing cannot offer any guarantees regarding positioning or reach that will be achieved for the Client. Flow Marketing cannot accept liability for any change in rankings, or reduction in website traffic.
The entire liability of Flow Marketing to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to earthquakes, strikes, lock outs, accidents, war, fire, breakdown of equipment or essential software, shortage or unavailability of a source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client is responsible for obtaining all legal clearances required for the performance of services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold the Company and its directors, employees and affiliates harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.
The Client and Flow Marketing agree to:
Payment of ongoing or retainer based invoices, (i.e hosting, social or search marketing) are due in advance by on the 20th of the prior month to allow sufficient funds for the client’s monthly ad spend and management in advance. This may be set up via direct debit or recurring credit card payment if required by Flow Marketing, wherein the payment will be automatically debited on the agreed date each month until termination of the agreement occurs. One-off jobs like individual monthly campaigns, design or websites are invoiced individually, payable by the due date listed on each invoice. Invoices will either be required prior to the commencement of the work beginning, or at the end of each month for the full month’s work. Larger invoices may be arranged to be paid in multiple instalments in some cases at the discretion of Flow Marketing. We reserve the right to require ask either security or payment in advance before any service.
Non Payment of Account:
If the Client has an overdue account with Flow Marketing, Flow Marketing reserves the right to cease work until the account is paid in full.
An account shall be considered default if it remains unpaid for 21 days from the date of invoice, or following a returned payment. Flow Marketing shall be considered entitled to remove Flow Marketing and/or the customer’s material from any and all networks, until the amount due has been fully paid. This includes any and all unpaid monies due for services.
Interest and Legal Expenses:
If you fail to make a payment by the due date you may be liable to pay us (at our discretion):
(a) Default interest on the amount outstanding calculated at 10% per annum, and shall accrue after as well as before judgement.
(b) All expenses, including collection costs from obtaining the services of a debt collection company and/or legal fees in relation to any overdue amount will be added to your account and you as the client are liable for its payment.
Any notice to be given by either party to the other may be served by digital communication (email, Skype, CRM or other communication software), personal service or by post to the address of the other party, and if sent by digital communication shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
Flow Marketing reserves the right to use the services of sub-contractors, agents and suppliers for any work, content or services.
Flow Marketing shall be an independent contractor and not an employee or dependent agent of the Client; nor shall anything herein be construed as making the Client a partner or co-venture with Flow Marketing or any of its affiliates or clients.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
This deed is governed by the Laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts in respect of all matters relating to this deed.
Each party agrees not to commence court proceedings (except proceedings seeking interlocutory relief) or arbitration in relation to any dispute unless it has first attempted to resolve the dispute as set out in this clause.
A party claiming that a dispute has arisen must notify the other party to the Dispute giving details of the Dispute.
During the 10-day period after a notice is given each party to the dispute (“Disputant”) must use its best endeavors to resolve the dispute.
If the Disputants are unable to resolve the dispute within the period above, the parties shall refer the dispute to a court.
Flow Marketing may amend this Terms and conditions at any time by posting terms on its website, which amended terms and conditions shall be binding upon Client.