Nestinia – Standard Terms and Conditions
Definitions
1.1 In these Conditions, the following words and expressions shall have the meaning set out below
‘Agreement’ means these Conditions read in conjunction with the Proposal and/or the Quotation from Harvest.
‘Client’ means the individual or business named on the Proposal or Quotation from Harvest.
‘Nestinia’ is a trading name of Nestinia Limited.
‘Project’ means the scope of work described by the Proposal and/or the Quotation from Harvest and governed by this Agreement.
‘Minimum Period’ means the period from the Start Date set out on the Contract Details, subject to the provisions for early termination.
‘Specification’ means the Project details outlined in the Quotation from Harvest and/or in the Proposal.
1.2 All services provided by Nestinia to the Client shall be governed by these Conditions, notwithstanding other terms stipulated at the point of order.
1.3 If there is any conflict between these Conditions and any other agreement made between Nestinia and the Client, these Conditions shall prevail.
2. Project Acceptance and Development
2.1 Prices stated in the Quotation from Harvest provided by Nestinia are valid for 30 days from the date specified in the Proposal. Nestinia reserves the right to withdraw the terms prior to acceptance by the Client.
2.2 Terms will not be deemed accepted until Nestinia receives an electronically accepted Quotation from the Client.
2.3 Subject to payment of the Fees and the provision of content by the Client, Nestinia agrees to implement the Project using reasonable endeavours and in accordance with the Proposal or the Quotation from Harvest and the other provisions of this Agreement.
2.4 Nestinia shall notify the Client when the Project or any agreed part is available for approval or acceptance testing. The Client shall advise Nestinia of any objective errors or omissions in that version of the Project within 10 working days of notification by e-mail. Nestinia will use reasonable endeavors to correct such objective errors or omissions.
2.5 If the Client does not notify Nestinia of any errors within 10 working days of the Project being available for review and/or acceptance testing, the Project will be deemed to have been completed to a satisfactory standard and payment will be due in accordance with clause 5.
2.6 Nestinia reserves the right to assign subcontractors to complete part or the whole of the Project.
3. Amendments to Specification
3.1 Any amendments to the Specification must be sent to Nestinia by the Client in writing by email, WhatsApp or call. Nestinia will assess the amendments required and discuss with the Client an amended Specification. Such amendments may be subject to additional fees as per the requirement
3.2 Nestinia reserves the right to charge for any additional work and will provide the Client with an additional quotation as part of the amended Specification. Nestinia also reserves the right to request payment for amendments to the original Specification before continuing work.
3.3 The Client will be required to agree to the amended Specification in writing by email before work on the amendments can commence
3.4 If the Client does not return the signed amended Specification to Nestinia within 10 working days, the Client shall be deemed not to require such amendments, and the Project shall be deemed complete with payment due.
4. Client Obligations
The Client agrees:
4.1 Nestinia will not be liable for the Client’s failure to comply with any laws or taxes affecting e-commerce.
4.2 The resale or distribution of the Project in full or part is forbidden unless prior written agreement is made between the Client and Nestinia.
4.3 Nestinia reserves the right to include developmental credits and links within any code, designs, builds or amends.
4.4 Nestinia may include any work done for the Client within their portfolio of work.
4.5 To provide any information or content required by Nestinia promptly. Failure to provide required information or content within 10 working days of request will result in payment being due for the work, and Nestinia will not be liable for any failure to subsequently meet targeted dates for completion of any related task.
4.6 If a problem with the design or code arises which does not allow the original Specification to be met, Nestinia may apply the nearest available alternative solution.
4.7 To keep all passwords confidential at all times.
4.8 They are responsible for providing and maintaining suitable equipment, telecommunications, and support services to facilitate access to the Project.
4.9 If a choice of design is presented by the Client, only one solution is deemed to be given by Nestinia as fulfilling the Project.
4.10 Not to approach or employ any Nestinia employee with a view to them providing services to the Client in any capacity.
5. Payment
5.1 The Client shall pay a deposit as requested by Nestinia. Nestinia will not commence any work on the Project until deposit monies are received by Nestinia.
5.2 The balance of the price shall become due at the completion of the Project .
5.3 All invoices must be settled within 30 days of the invoice date. Payment may be made by bank transfer.
5.4 All prices quoted for work are subject to VAT or GST at the prevailing rate.
6. Outstanding Payments
6.1 Nestinia reserves the right to refuse to undertake any further work for the Client if an invoice remains outstanding.
6.2 Nestinia reserves the right to remove any work done for a Project from any computer systems and the internet if invoice payments are not received within 30 days of the invoice date.
6.3 Nestinia’s removal of Project material does not relieve the Client of its obligation to pay the due amount. Clients whose accounts are in default agree to pay Nestinia Ltd’s reasonable legal expenses and third-party collection agency fees in the enforcement of these Conditions.
7. Warranties
7.1 The Client warrants that it has the authority to enter into and perform this Agreement and has not entered into any other agreement which conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement
7.2 The Client warrants that it has obtained and will maintain all necessary licenses, authorisations, and consents necessary for the Project, content, and domain name.
8. Copyright and Ownership
8.1 Title and copyright to the website graphics, general artwork, commissioned artwork, illustrations, site content, website front and back-end, and other graphic work created in the Project shall become the sole property of The Client when all invoices have been paid.
8.2 Data which is gathered as a consequence of the operation of the website shall belong to and be the responsibility of the Client
8.3 Where the Client terminates the Project before completion, all work done towards the Project remains in the Ownership of Nestinia, and all work completed prior to termination will be charged at the standard hourly rate of £95+VAT per hour.
8.4 Publication and/or release of the graphic design within the Project may not take place before cleared funds have been received by Nestinia Ltd.
8.5 The Client may request, in writing, Nestinia’s permission to use Project material (for which Nestinia holds the copyright) in forms other than for which it was originally supplied. Nestinia may, in its absolute discretion, grant this and may charge for the provision of the same
8.6 If the client supplies material to Nestinia, it is the responsibility of the client to obtain all necessary copyrights for its use, and Nestinia will assume this has been done. In this situation, the copyright shall be retained by the client.
8.7 Should the Client supply material to Nestinia believing it to be copyright and royalty-free, which subsequently emerges to have copyright and royalty limitations, the Client agrees to permit Nestinia to remove and/or replace the file at the Client’s expense to be assessed on a quantum merit basis. In this situation, the client indemnifies Nestinia from any claim which arises regarding the use of material supplied to Nestinia.
8.8 The Client agrees that Nestinia holds no responsibility for any amendments made by a third party before or after a design is published.
8.9 Nestinia reserves the right to use any artwork or printing they produce for the purposes of promoting their services
9. Term
9.1 This Agreement shall commence upon the date of signature on the Quotation from Harvest and shall continue until receipt of invoice payment unless terminated in accordance with clause 14.
9.2 Termination shall be without prejudice to any rights acquired by the parties during the term of the contract.
10. Indemnities
10.1 The Client agrees to keep Nestinia fully indemnified on demand against any liability, damage, expense, claim, or cost (including legal costs and expenses) suffered by Nestinia as a result of the Client’s breach of any clause of this Agreement
10.2 The Client agrees that Nestinia is not liable for any claims, losses, costs incurred, or damages due to any failure to carry out services within a given delivery timescale.
10.3 The Client agrees that Nestinia is not liable for the absence of service as a result of illness or holiday.
10.4 The Client agrees that Nestinia shall not be liable for the website content, hosting, and choice of domain name.
10.5 The Client agrees that Nestinia shall not be liable for any infringement of copyright or proprietary rights, misinformation, or delivery of defective products or services.
10.6 The Client will indemnify Nestinia in relation to any liability arising in respect of the matters at 10.2, 10.4, and 10.5.
11. Limitation of Liability
11.1 Notwithstanding anything contained in these Conditions or the Specification, Nestinia’s liability to the Client in respect of the Project, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the price for the Project specified in the Quotation from Harvest.
11.2 Notwithstanding anything contained in these Conditions or the Specification, in no circumstances shall Nestinia be liable, in contract, tort (including negligence or breach of statutory duty), or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues, or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever.
12. Force Majeure
12.1 Nestinia shall not be under any liability for any failure to perform any of its obligations under the order due to ‘Force Majeure’. Following notification by Nestinia to the Client of such cause, Nestinia shall be allowed a reasonable extension of time for the performance of its obligations.
12.2 For the purposes of this condition, ‘Force Majeure’ means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, telecommunication problems, software failure, hardware failure, third-party interference, official strike, or similar official labor dispute, or events or circumstances outside the reasonable control of the party affected thereby.
13. Confidentiality and Data
13.1 The Client is responsible for keeping the password and username that may be assigned on registration confidential. The Client is fully responsible for all actions and activities that take place under the Client account
13.2 If the Client believes there has been unauthorized use of the account or suspects that confidentiality has been compromised, the Client must contact Nestinia immediately at hello@nestinia.co.uk.
13.3 In the event of termination or expiration of this Agreement, each party shall return or, if requested, destroy the confidential information of that party.
13.4 Each party will comply with its obligations pursuant to the Data Protection Act 1998.
13.5 Nestinia and any third-party associates agree that they will not disclose any confidential information relating to the Client without the Client’s express permission.
13.6 The Client agrees that they will not disclose any confidential information relating to Nestinia.
13.7 Nestinia shall use information provided by the Client: (a) to identify the Client in communication by phone, email, postal mail, or Skype; and (b) to contact the Client from time to time to offer them services or products which may be of interest to or benefit the Client.
14. Termination
14.1 The Client may request in writing that Nestinia cancel a Project. Nestinia will only accept this request for termination if work on the Project has not yet begun. If work has already begun on the Project, Nestinia will invoice the Client for the work carried out and any project milestone payments that would be due within 3 months after.
14.2 Nestinia reserves the right not to work with any Client who has a website which it deems unlawful or inappropriate, contains a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offense, infringes privacy or copyright, or any other questionable media at its own discretion
14.3 Nestinia reserves the right without notice to cancel, reject, refuse sale to, or work with a Client without reason for such rejection or refusal.
14.4 Nestinia reserves the right to cancel the Client’s email access: (a) if Nestinia receives excessive spam complaints about the Client (b) it is suspected the Client is using the email account to send spam (c) Nestinia suspects the Client is using the service to send pornographic, offensive, or inappropriate material (d) Invoice payment is not made in accordance with these terms
14.5 Should the Client go into compulsory or involuntary liquidation or cannot pay its debts in the normal course of business, Nestinia reserves the right to terminate the Project.
14.6 Nestinia reserves the right to terminate a Project with the Client at any time without prior notification if it deems the Client to be in breach of these Conditions. Nestinia shall be the sole arbiter in deciding what constitutes a breach. The Client shall not be entitled to refunds of any payments made to Nestinia.
14.7 If the Project is terminated by either party, then Nestinia will be entitled to payment for work done to that date and any project milestone payments that would be due within 3 months after. The invoice for such work must be paid by the Client within 30 days of receipt, failing which Nestinia shall be entitled to payment of the full price of the Project forthwith
15. Web Design and Development
15.1 The website design may be used on one domain name only. The Client is not permitted to use a design for more than one website without prior written agreement from Nestinia.
15.2 Nestinia cannot guarantee correct functionality with all browser software across all different operating systems. However, Nestinia shall endeavor for all websites to function with Internet Explorer and Google Chrome's latest releases
15.3 The Client agrees that all websites will be hosted by Nestinia unless otherwise agreed in the Proposal or Quotation from Harvest.
15.4 Nestinia may from time to time recommend to the Client that updates are needed to their website to comply with, but not limited to, the following: new legislation, software releases, and web standards. Nestinia reserves the right to charge for these updates as additional work.
15.5 The Client agrees that no liability will be attributable to Nestinia in the event of website downtime or the inability to operate the web pages or website.
15.6 Should the Client supply material to Nestinia believing it to be copyright and royalty-free, which subsequently emerges to have copyright and royalty limitations, the Client agrees to permit Nestinia to remove and/or replace the file at the Client’s expense to be assessed on a quantum merit basis
16. Hosting, Maintenance and Support
Any website containing creative or functional input by Nestinia shall be hosted and supported by Nestinia and:-
16.1 The Client agrees that Nestinia is not liable for any bugs, performance issues, or failure of their code.
16.2 The Client agrees that no liability will be attributable to Nestinia in the event of website downtime or the inability to operate the web pages or website.
16.3 The Client agrees that Nestinia or its agents will not be liable if they fail to register such domain names as requested by the Client.
16.4 Nestinia will quote for any work involved in changing the website design or website code in order for it to work with updated browser software, domain name, or hosting changes
16.5 A hosting invoice will be raised for each website when the Project is completed and payment received. Hosting invoices will then be raised on a monthly, quarterly, or annual basis.
17. Digital Marketing and Printing
17.1 No warranty is provided by Nestinia in relation to the performance of third parties engaged to perform part of the Project and Nestinia shall not be liable for any failure, action, omission, or error on the part of a third-party provider such as Google
17.2 The Client agrees that Nestinia is unable to guarantee that the Client’s website will achieve a favorable position, or any position, within a particular search engine and as such, shall not be liable for failure to achieve a particular position.
17.3 The Client agrees that Nestinia shall not be liable for any website URLs dropped or excluded by a search engine for any reason.
17.4 The Client agrees that Nestinia does not warrant or represent that search engine results reported will be correct, accurate, timely, reliable, or otherwise due to their reliance on third-party software.
17.5 The Client acknowledges and accepts that estimates of quantities of printed goods to be delivered are subject to tolerances of 5% for works in a single color and 10% for other works, which will be charged or deducted as appropriate.
18. Relationship
18.1 Nothing in this Agreement shall be deemed to create a partnership, joint venture, or contract of employment of any kind between the parties.
19. Entire Agreement
19.1 Each party agrees that this Agreement sets out the entire agreement between the parties and supersedes all previous agreements.
20. Waiver
The failure by Nestinia to enforce any of these Conditions at any time or for any period will not release, exonerate, or in any way affect the liability of the Client or be a waiver of:
20.1 these Conditions;
20.2 the right of Nestinia at any time afterward to enforce each and every clause of these Conditions; or
20.3 any penalty attached to their performance.
21. Severance
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void, or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement
22. Time of the Essence
Throughout the Project, time shall not be of the essence, except where it is expressly stated to apply.
23. Rights of Third Parties
Pursuant to s 1(2)(a) of the Contracts (Rights of Third Parties) Act 1999, the parties intend that no term of this agreement may be enforced by any person who is not a party to this agreement.
24. Assignment
This Agreement shall be binding upon the parties and their respective successors and permitted assignees, and references to a party in this agreement shall include its successors and permitted assignees.
25. Governing Law
This Agreement shall be governed by and interpreted in accordance with English law, and the English courts shall have jurisdiction to resolve any disputes between the parties.