1. DEFINITIONS AND INTERPRETATION
“Agreement” means the agreement which is governed by these Terms and Conditions.
“Associated Documents” means any documents created by nimbl on the reading of which contains terms which relate to the relationship between nimbl and its Customer.
“Customer” means the person who engages the Services of nimbl pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms and Conditions.
“Period” means the duration of the Agreement which is twelve months unless otherwise stated in the Customer proposal.
“PPC Services” means pay per click services and products such as Google Ads, Facebook, Bing that nimbl may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto (Attachment A).
“nimbl” means nimbl Pty Ltd which expression shall include the members, officers, employees, affiliates and permitted agents and subcontractors engaged from time to time by nimbl to provide the services.
“Services” means all services of the type and nature as described in these Terms and Conditions, Customer Proposal, Corresponding Emails, Schedule to Customer Proposal and Associated Documents provided by nimbl to the Customer.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions set out in this document.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services (Attachment B).
(a) The singular includes the plural and vice versa
(b) References to a person includes a corporation, firm, company, partnership, joint venture, unincorporated body of persons or individual whether or not a separate legal entity.
2.1 The Customer is deemed to have accepted the Terms and Conditions by placing an order with nimbl or instructing nimbl to provide the Services after:
(a) nimbl’s Terms and Conditions received by the Customer; or
(b) The availability of nimbl’s Terms and Conditions on nimbl’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer will provide in a timely fashion all information, access to third parties as reasonably required and access to Website to enable nimbl to change and modify the Website to enable nimbl to provide the Services.
3.2 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract on behalf of the registered proprietor and both the Customer and the registered proprietor are jointly and severally liable for the obligations of the Customer under the Terms and Conditions.
3.3 The Customer will notify nimbl in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control of the Customer’s business or change of the registered proprietor of the domain name of the Website The Customer will remain liable under the Agreement unless released in writing by nimbl.
4. PERFORMANCE LEVELS
4.1 nimbl will provide its Services on information supplied to it about the Customer’s business. However, the Customer acknowledges that nimbl cannot guarantee an improvement in rankings, traffic, sales, business activity, profit or any other form of improvement. nimbl cannot accept responsibility for any loss or damage, including consequential loss, arising from its Services.
4.2 nimbl will endeavour to ensure that any development/design site or application will function correctly on the server which it is initially installed on when viewed with the latest version of the web browsing software Microsoft Edge or Mozilla browsers or Chrome browsers. nimbl can offer no guarantees of the correct functioning with all browsers.
5.1 nimbl shall not be liable to the Customer for any direct, indirect, economic, special, punitive, incidental or consequential loss or damage (whether for loss of profits, loss of business, revenue, data, goodwill or otherwise) arising suffered by the Customer which arises out of or in connection with the provision of the Services or any liability of the Customer.
5.2 The entire financial liability of nimbl (including any liability for the acts or omissions of its members, officers, employees, affiliates and permitted agents and subcontractors ) to the Customer in connection with provision of Services in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clause 5.1 above or otherwise) whether such claim arises in contract, tort, misrepresentation or otherwise shall not exceed a sum equal to the fees paid for the Services.
5.3 nimbl accepts no duty of care or other liability in respect of its Services to any person other than the Customer.
5.4 nimbl 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 any free hosting service should the necessity arise and nimbl reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
6. INTELLECTUAL PROPERTY AND COPYRIGHT
6.1 Intellectual property rights in all documentation, systems, design, materials, methodologies and processes created in course of providing Services to the Customer shall remain the property of nimbl.
6.2 Any scripts, cgi applications or software (unless specifically agreed) written by nimbl remain the copyright of nimbl and may only be commercially reproduced or resold with the permission of nimbl.
6.3 At the conclusion of nimbl services to the Customer, the Customer may request nimbl to hand-over customer data it has in its possession; however, nimbl will not release access to the account and set-up which remains the intellectual property of nimbl.
7. FEES AND PAYMENT
7.1 Unless specifically agreed otherwise, upon acceptance of the Terms and Conditions the Customer is liable to pay the total amount in advance for nimbl’s Services.
7.2 In the event that the Customer fails to make payment of nimbl invoices, without prejudice to any other rights nimbl has, nimbl retains the right to charge interest at the rate of 2% per month accruing on a daily basis on any outstanding amount and the Customer indemnifies nimbl against all costs and expenses arising from such default including legal costs.
7.3 All nimbl charges will be deducted against the credit card or account the Customer designates in the executed Credit Card Authority or Direct Debit authority such deduction being made 7 days from issue of a tax invoice to the Customer. The Customer agrees that nimbl may charge the credit card or direct debit for any additional amounts (including taxes and late fees, as applicable) as may be accrued in connection with nimbl’s charges.
7.4 Goods & services tax (GST) at the prevailing rate will be added to and forms part of our fees.
8.1 To pause a service requires acknowledgement and approval by a senior manager, other than the account manager, at nimbl.
8.2 A pause in services by nimbl will be no longer than a 2 month period unless agreed otherwise.
8.3 All other Terms and Conditions of this agreement remain the same.
9.1 Subject to clause 9.2, both nimbl and the Customer may each terminate the Agreement at the expiration of the Period by giving written notice of its intention to do so at least 30 days before the end of the Period. If neither party gives notice of intention to terminate, the Agreement will continue from month to month until terminated by either party on one month’s notice. The Customer must pay nimbl the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.2 nimbl may give the Customer written notice of variation of the Agreement (including the fees and charges of nimbl) and the variation(s) will take effect 14 days after such notice is given but never any earlier than the expiration of the Period of the Agreement. If notice of variation is given, the Customer may terminate the Agreement by giving written notice to nimbl within 14 days of receiving notice of variation, such termination to take effect when the variation would have taken effect save for the termination by the Customer. The Customer must pay nimbl the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.3 nimbl may terminate the Agreement immediately by written notice to the Customer where the Customer:
(a) becomes bankrupt, or insolvent, or becomes subject to external administration, or
(b) commits a substantial breach or default under the Agreement; or
(c) repudiates the Agreement; and if nimbl does give such notice, the Customer must pay nimbl the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.4 nimbl retains it right over all things pertaining to your matter until all invoices have been paid in full.
10.1 The Customer agrees that the Customer’s personal data may be used and retained by nimbl for the purposes of both provision and marketing of goods & services, and also for processing of payment instructions.
11.1 Unless otherwise agreed, nimbl will not be prevented or restricted from providing services to other clients including but not limited to your competitors or other parties whose interests may be in conflict with yours, provided we do not disclose your confidential information.
12.1 The Customer authorises nimbl and nimbl is able to communicate electronically using electronic mail.
13.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of Victoria and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Victoria.
13.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
13.3 nimbl can assign its rights under the Agreement upon the provision of 30 days written notice to the Customer. The Customer cannot assign its rights under the Agreement without the express written consent of nimbl.
14. FORCE MAJEURE
14.1 nimbl will not be liable to the Customer for any delay or failure to fulfil its obligation to the extent that such delay or failure is caused beyond its control, including but not limited to, fire floods, natural disasters, terrorism, wars, strikes, lockouts and industrial disputes.
ATTACHMENT A: PPC TERMS
This schedule provides additional specific terms and conditions for the provision of PPC Services by nimbl. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail.
1.1 The duration of the Agreement is twelve months unless otherwise stated in the Customer proposal.
2.1 The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2.2 The first monthly fee plus GST is payable on setting up the account and payable monthly thereafter.
2.3 Monthly fees will be calculated as the base monthly fee stated in the Customer Proposal plus GST per month or a specific percentage of the total media spend, whichever is greater. Adjustments for amounts greater than the monthly fee will be made at the end of each month and be payable on the next invoice issued to the Customer.
3. GOOGLE ADS
3.1 nimbl will offer a managed Google Ads service with the following provisions:
(a) nimbl will setup a new Google Ads account for the Customer.
(b) nimbl will have sole access and retain ownership of the new Google Ads account.
(c) nimbl will provide the Customer via Google Analytics with access 24/7 to reporting and campaign date.
(d) nimbl will endeavour to spend the predetermined Google media budget each month. nimbl will not be liable for any under or overspend.
(e) The Customer is liable for all Google Ads charges generated from the Google Ads account.
4.1 All fees are payable monthly in advance.
4.2 All fees including Click costs payable to Google shall be paid by the Customer either by:
(a) the provision of a credit card by the Customer to nimbl that can be used to pay Google media spend directly to Google up to a defined spending budget as confirmed by the Customer together with the fees of nimbl; or
(b) the Customer accepts a billing cycle one month in advance of the month where the spend is applicable and makes payment before the invoice due date into the nimbl bank account before nimbl makes payment to Google. nimbl will raise an invoice for the media spend and GST and be responsible for paying Google for the media spend due from the pre-deposited amount.
5.1 Refer Section 9 of the Terms and Conditions.
ATTACHMENT B: WEBSITE TERMS
nimbl reserves the right to recover additional costs for any work carried out under the following circumstances:
1.1 If the scope changes to the extent that substantially alters the specifications in the proposal including but not limited to:
(a) Additional pages and features
(b) Changes to functionality
(c) Uploading of additional products, images & content (d) Professional photography and video content
(e) Generation and editing of content (f) SEO Migration
(g) Plugin updates, site core updates and security updates.
1.2 Subsequent changes to appearance & layout after finalised and approved by the customer
1.3 Delays by the customer in providing nimbl with required information and content
1.4 After the website is handed over to the customer any further work carried out by nimbl at the customer’s request
1.5 Issues identified 30 days after the website going live which are unlikely to be due to the original site coding and or design
nimbl’s rate for additional work will be charged at $150 per hour.