- The following terms and conditions document is a legal agreement between NIMBLER Digital (Pty) Ltd, trading as NIMBLER Group, or any of its business units or subsidiaries, hereafter referred to as “NIMBLER”, and “the Client” for the purposes of offering the services described in the Proposal.
- These Terms and Conditions set forth the provisions under which the Client may use the services supplied.
2. Acceptance of Work
- Quotations and proposals are valid for Thirty (30) days from date of issue.
- When the Client places an order to purchase a service, the order represents an offer to NIMBLER to provide this service, which is accepted by NIMBLER only when the proposal is signed by a NIMBLER representative and/or when an invoice is issued to the Client.
- NIMBLER reserves the right to withdraw from contract at any time prior to acceptance.
- The signed quotation, digitally or otherwise, equals acceptance by the Client to purchase services from NIMBLER, and this acceptance of work constitutes a valid contract between the Client and NIMBLER regardless of whether the Client receives an invoice.
- Proposals can be signed using PandaDoc, which uses HIPAA and ISO 27001 compliant cloud infrastructure and industry standard 256-bit SSL encryption to keep the Client’s connection and personal information safe. Your electronic signature (‘eSignature’) has a legal standing equal to a handwritten signature under South African law.
- The Client agrees to check if the details on the invoice are correct and should print and keep a copy for its records.
3. Permission & Copyrights
- Copyright of the completed websites, logos, branded materials, designs, photos, graphic design files, code, source files or any other materials created by NIMBLER for the project shall be with the Client upon final payment. Until final payment is received, all ownership lies with NIMBLER.
- Optimisation and management of advertising campaigns, as well as other ongoing services provided to the Client, are subject to recurring management fees. The Client agrees to pay those management fees for as long as the campaign is active or the service is provided.
- Marketing campaigns created on third-party platforms remain the property of NIMBLER, even in such case as the Client has paid for the setup thereof or is given access to the marketing campaign.
- The Client may be required to set up their own payment method on certain advertising platforms from time to time. NIMBLER bears no responsibility for outstanding payments, providing the Client with invoices, nor can it take any responsibility for payments above or below the agreed budget.
- The Client hereby agrees that all media and content made available to NIMBLER for use in the project are either owned by the Client or used with full permission of the original authors.
- The Client agrees to hold harmless, protect and defend NIMBLER from any claim or suit that may arise as a result of using the supplied media and content.
- The Client agrees that NIMBLER may include development credits and links within any code NIMBLER designs, builds or amends. NIMBLER will normally include a development credit in the footer of any website developed, consisting of text or an image that links to its website.
- The Client agrees that NIMBLER reserves the right to include any work done for the Client in a portfolio of work, share work via social media and publish articles on its blog on the project.
- If the Client prefers NIMBLER not to include any credits, or publish its involvement in the project, NIMBLER and the client should agree to this in writing before commencement of the project.
- NIMBLER reserves the right in its sole discretion to refuse to provide a service for anything which it deems is, including but not limited to, unlawful or inappropriate, contains a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offence, can be regarded as a pyramid scheme, infringes privacy or copyright or any other questionable media at NIMBLER’s own discretion.
- NIMBLER reserves the right to refuse sale for orders from suspect payment or address details or other reason at NIMBLER’s own discretion.
- NIMBLER reserves the right without notice to cancel, reject, refuse sale to or work with a the Client without reason for such rejection or refusal.
- The Client agrees to take all legal responsibility for use of third party domain names, hosting and email services and hereby agrees to indemnify and hold harmless NIMBLER from any claim resulting from the Client’s publication of material and use of the domain name.
- The Client agrees to pass on FTP and hosting panel details, and any other access details relating to their domain name and hosting account, which the NIMBLER requires as part of a project.
- NIMBLER reserves the right without notice to refuse work with domain names or hosting and email services without reason for such rejection or refusal.
5. Website Maintenance Agreement
- The Client may decide to opt for the website maintenance agreement when taking a new website live.
- If the Client refuses to take out the website maintenance agreement:
- the Client is required to sign a waiver to confirm the Client is aware of the risks;
- the Client understands and recognises that not regularly updating the website software will eventually cause the website security to be compromised, and without the maintenance agreement that responsibility lies entirely with the Client;
- the Client has been informed that any damage done to the website by a third party that gains unauthorised access to the website will be repaired at the Client’s own expense, may impact the Client’s position and reputation with search engines and other third parties, and may lead to the website being unavailable for a period of time;
- the Client confirms that NIMBLER bears no responsibility for third parties gaining unauthorised access to the website or any consequences resulting from that unauthorised access, including but not limited to theft of personal or client information, harmful links added to the website and defacement of the website; and
- the Client has been informed that security breaches may in some cases lead to suspension of the hosting package to protect other clients operating from the same server, which may result in email outages for the duration of the suspension.
- If the Client takes out a website maintenance agreement, NIMBLER will:
- update the website software (i.e. WordPress and its plugins) regularly to maintain a level of security on the website;
- fix any issues that arise from the aforementioned website software updates to maintain a similar appearance and similar functionality on the website; and
- enhance security by implementing a plugin that allows NIMBLER to monitor security and enforce a stricter security policy.
- The website maintenance agreement covers fixing the website after an unauthorised individual aiming to do damage (a “Hacker”) gained access and did damage to the website, provided the Client hosts the website on one of NIMBLER’s servers, the Hacker did not gain access through one of the Client’s user accounts, and the Client was not in another way negligent with the website’s access credentials.
- The website maintenance agreement does not include any content changes or license fees, and expressly does not cover fixes caused by the Client’s own users.
- NIMBLER reserves the right to quote for an additional once-off fee if the website’s plugins or themes are no longer supported, and have to be replaced by a theme or plugin of similar functionality.
- If the Client decides to activate the maintenance agreement at any time after the launch, NIMBLER reserves the right to quote the Client for outstanding and back-logged maintenance to the website’s software.
- The Client can cancel the maintenance agreement with one month notice. The Client is then required to sign a waiver to confirm the Client is aware of the risks around keeping the website online without a maintenance agreement.
- All alterations and modifications for projects are to be requested in writing by email by the Client.
- After the maximum number of alterations have been completed, NIMBLER reserves the right to send a separate quotation to the Client and to request payment for any further alterations.
- NIMBLER reserves the right to request payment be received for further alterations before continuing work.
- If the client requests additional services not included in the proposal or quotation, a separate quotation shall be drafted.
- Upon completion of an agreed design the Client is asked to confirm in writing by email that the design may be signed off as complete and agree that any further design alterations are subject to additional fees.
- The Client agrees to provide any information required by NIMBLER before commencement of the project to enable NIMBLER to complete the work speedily and efficiently. In the case of sensitivity to information being disclosed, such as trade secrets, patents, business know-how etc. a Non-Disclosure Agreement (NDA) shall be signed between NIMBLER and the Client.
- The Client agrees that a HTML page built from a graphic design may not exactly match the original design because of the difference between the display in design software and the rendering of HTML code by internet browser software. NIMBLER agrees to try and match the design as closely as is possible when building the code.
- NIMBLER endeavours to create pages that are search engine friendly, however, NIMBLER gives no guarantee that the site will become listed with search engines or of certain search results. In no event shall NIMBLER be held liable for any changes in search engine rankings as a result of using NIMBLER’s services.
- If an error or issue with the design or code arises during the project which does not allow the design or code to match the original specification, then the Client agrees that NIMBLER can apply a nearest available alternative solution.
- After completion of the website, the Client or a third party of their choosing may wish to edit their website code themselves to make updates. However, the Client agrees that in so doing they assume full responsibility for any issues which occur as a result of changing the code themselves. If the Client or a third party of their choosing edits the website code and this results in functionality errors or the page displaying incorrectly, then NIMBLER reserves the right to quote for work to repair the website.
- The Client agrees to indemnify and hold harmless NIMBLER from any claim resulting from any damages resulting from security breaches, including but not limited to, prolonged website unavailability, defacement of the website, damage to reputation and theft of information. If the Client has maintained and paid for a Website Maintenance Agreement from the moment the website was first launched, NIMBLER will agree to repair the website to its original state following a security breach.
- NIMBLER reserves the right to assign subcontractors in whole or as part of a project if needed.
- All communications between NIMBLER and the Client shall be by telephone or email, except where agreed at NIMBLER’s discretion. WhatsApp is explicitly not an approved communication medium for NIMBLER’s staff to communicate with Clients.
7. Payment Terms
- All prices quoted are exclusive of VAT, unless it is explicitly mentioned that VAT is included. NIMBLER is VAT registered at this time.
- All invoices must be paid in full within Fourteen (14) days of the invoice date and NIMBLER will carry out work only where an invoice has been paid by the Client for the work, unless otherwise agreed at NIMBLER’s discretion.
- The final invoice for the website must be paid before the website is made live, unless it is hosted on NIMBLER’s own servers.
- Under normal circumstances, proposals and quotations require a deposit equal to Fifty Percent (50%) of the total budget, payable before any work commences.
- Any orders that require purchase of materials, including but not limited to, templates, stock photos, plugin licenses and third-party services, are subject to full payment in advance.
- NIMBLER may make exceptions on the above policy at its sole discretion, including but not limited to, issuing an invoice for the full amount after the work is completed, requiring full payment for the work before commencement, or issuing an invoice with a higher or lower percentage advance.The final invoice is issued upon completion of the services listed in the quotation with a payment term of 14 days. NIMBLER reserves the right to invoice individual services separately once completed, even if they were included in a single quotation.
- Once an invoice is sent to the Client it must be paid by Electronic Funds Transfer. Any transactions costs are to be borne by the Client.
- All invoices are submitted by email except where required otherwise by regulations or agreed at NIMBLER’s discretion.
- Additional work requested by the Client which is not specified in the agreed quotation is subject to a separate quotation and NIMBLER reserves the right whether to quote or accept additional work. If additional work is accepted by NIMBLER this may effect timescales and the overall delivery time of the project.
- The Client may request that NIMBLER cancel a project in writing by email to NIMBLER.
- The project is cancelled only if NIMBLER confirms work has not been started on the project.
- If NIMBLER has begun the work and the Client no longer requires the work to be completed, or cancels for whatever reason, but have agreed to the work, the initial deposit of Fifty Percent (50%) will be forfeited.
- If more than Fifty Percent (50%) of the work has been carried out, or no deposit was paid, NIMBLER will issue an invoice for the full amount, or any lower amount at NIMBLER’s discretion.
- NIMBLER reserves the right to decline further work on a project if there are invoices outstanding with the Client.
- The products created in the course of providing the service, including websites, logos and other materials, may only be used once final payment is received, unless otherwise agreed at NIMBLER’s discretion.
- NIMBLER reserves the right to charge interest on late payments at the prime interest rate generally used in the Republic of South Africa plus Three Percent (3%), compounded every Thirty (30) days. NIMBLER will start charging late payment fees Thirty (30) days after the invoice is issued.
- NIMBLER reserves the right to remove its work for the Client from the internet or other applicable medium if payments are not received.
- NIMBLER reserves the right to suspend the Client’s hosting if the Client has outstanding invoices older than Thirty (30) days.
- NIMBLER reserves the right to pursue legal action for copyright infringement if the Client uses materials designed or otherwise produced by or with the aid of NIMBLER without settling the relevant invoice.
8. Liability & Warranty Disclaimer
- The Client agrees NIMBLER is not liable for any failure to carry out services for reasons beyond its control including but not limited to acts of God, telecommunication problems, software failure, hardware failure, power failure, third party interference, Government, emergency on major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
- NIMBLER is not liable for any consequences or financial losses such as, but not limited to, loss of business, profit, revenue, contract, data or potential savings, relating to services provided.
- Should the Client go into compulsory or involuntary liquidation or cannot pay its debts in the normal course of business, NIMBLER reserves the right to cancel forthwith any projects and invoice the Client for any work completed.
- NIMBLER shall have no liability to the Client or any third parties for any damages, including but not limited to, claims, losses, lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate these web pages or website, even if NIMBLER has been advised of the possibility of such damages.
- The Client agrees to use all NIMBLER services and facilities at their own risk and agree to defend, indemnify, save and hold NIMBLER harmless from any and all demands, liabilities, costs, losses and claims including but not limited to attorney’s fees against NIMBLER or its associates that may arise directly or indirectly from any service provided or agreed to be provided or any product or service sold by the Client or its third parties.
- The Client agrees this indemnification extends to all aspects of the project, including but not limited to website content, choice of domain name, brand designs, advice of any kind and marketing campaigns.
- The Client also agrees to defend, indemnify and hold harmless NIMBLER against any liabilities arising out of injury to person or property caused by any service provided or agreed to be provided or any product or service sold by the Client or third parties, including but not limited to, infringement of copyright, infringement of proprietary rights, misinformation, delivery of defective products or services which is harmful to any person, business, company or organisation.
NIMBLER and any third party associates agrees that, except if directed by the Client, it will not at any time during or after the term of this agreement disclose any information explicitly marked as confidently. Likewise, the Client agrees that it will not convey any confidential information about NIMBLER to another party.
- NIMBLER reserves the right to terminate a project with a the Client at any time without prior notification if it finds the Client in breach of these terms and conditions.
- NIMBLER shall be the sole arbiter in deciding what constitutes a breach. No refunds are given in such a situation.
- This agreement shall be governed by South African Law which shall claim venue and jurisdiction for any legal motion or claim arising from this agreement.
- This agreement is void where prohibited by law. Where one or more terms of this contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
- Any and all matters pursuant to this agreement are governed by South African Law and are under exclusive jurisdiction of the South African Courts.
- NIMBLER reserves the right to alter these Terms and Conditions at any time without prior notice, the latest terms and conditions can be found on the NIMBLER website.
- By signing a quotation or quotation, or making a payment of invoice to use our services, the Client acknowledges to have read, understood, and accepted the Terms and Conditions of this Agreement, and agrees to be legally bound by these Terms and Conditions.
- Our proposals can be signed using PandaDoc, which uses HIPAA and ISO 27001 compliant cloud infrastructure and industry standard 256-bit SSL encryption to keep your connection and personal information safe. The Client’s electronic signature (‘eSignature’) has a legal standing equal to a handwritten signature under South African law.