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Terms and Conditions

Welcome to Gachoki Studios. Your engagement with us is governed by the following terms and conditions. By choosing to work with Gachoki Studios, you acknowledge that you have read, comprehended, and agreed to abide by these terms and conditions.

Welcome to Gachoki Studios’ website, accessible at https://gachoki.com. We value your trust and are committed to protecting your privacy. This Privacy Policy is designed to help you understand how we collect, use, and safeguard your personal information when you use our website and services.

By accessing or using our website, you consent to the terms outlined in this Privacy Policy. If you do not agree with these terms, please do not use our website.

Information We Collect

  1. Personal Information: To enhance your experience on our website and provide our services, we may collect certain personally identifiable information, which may include but is not limited to your name, phone number, postal address, and location. We use this information to improve our services and may contact you if necessary.
  2. Log Data: When you visit our website, we automatically collect Log Data, which includes technical information such as your computer’s Internet Protocol (“IP”) address, browser version, the pages you visit, the time and date of your visit, and the time spent on those pages. This information helps us understand how you use our website and improve its functionality.
  3. Cookies: Our website uses cookies, which are small files stored on your computer’s hard drive. Cookies are used to collect information and enhance your browsing experience. You can choose to accept or decline cookies through your browser settings. Please note that refusing cookies may limit certain features of our website.

Third-Party Services

At times, we may engage third-party companies and individuals for various purposes, including facilitating our services, providing services on our behalf, performing service-related tasks, or assisting us in analysing how our website is used. These third parties may have access to your Personal Information, but they are obligated not to disclose or use it for any other purposes.

Security

We are committed to using commercially acceptable means to protect your Personal Information. However, please be aware that no method of data transmission over the internet or electronic storage is entirely secure. While we strive to protect your data, we cannot guarantee its absolute security.

Links to Other Sites

Our website may contain links to third-party websites. Please be aware that these external sites are not operated by us, and we have no control over their content, privacy policies, or practices. We recommend reviewing the privacy policies of these websites separately.

Managing Your Personal Data

If you wish to have your Personal Data deleted, please send an email to info@gachoki.com from the email address associated with your Facebook account. In your email, clearly state your request for data deletion, including your full name and any additional information that may assist us in identifying your account. We may require additional verification to ensure data security and confirm your identity.

We strive to process data deletion requests in a timely manner. However, please note that residual copies of your information may remain in our backup systems for a limited period, as necessary for routine business operations or legal compliance.

Data Protection and Retention

We employ reasonable technical and organizational measures to protect your Personal Data against unauthorized access, disclosure, alteration, or destruction. Our security measures include data encryption, access controls, regular system updates, and staff training on data protection.

We retain your Personal Data only for as long as necessary to fulfill the purposes outlined in this Privacy Policy or as required by applicable laws and regulations. Once your data is no longer needed for these specified purposes, we will securely delete or anonymize it.

Changes to this Privacy Policy

We may update this Privacy Policy from time to time to reflect changes in our practices and services. We encourage you to review this page periodically for any updates. We will notify you of any changes by posting the revised Privacy Policy on this page, and these changes will be effective immediately upon posting.

Contact Us

If you have any questions or suggestions regarding our Privacy Policy, please do not hesitate to contact us at info@gachoki.com. Your privacy matters to us, and we are here to address any concerns you may have.

Thank you for visiting Gachoki Studios’ website.

Gachoki Studios (referred to herein as ‘Gachoki Studios’, ‘Agency’, ‘we’, ‘us’, ‘our’) is a business established, registered, and operates along Standard Street, Nairobi, Kenya.

The terms and conditions set out below (“Terms”) govern any Contract that we enter into with you, the client (referred to as ‘Client’, ‘you’, ‘your’) in respect of our Animation Services, Visual Effects Services, and Still Render Services (defined below) and apply whether you view our services or communicate with us via email, our website, mobile applications or social media or whether you communicate with us by telephone, post or any other medium of communication.

You should print a copy of these Terms for future reference. We will not file a copy specifically for you, and they may not be accessible on this website in the future.

These Terms and Conditions are available in the English language only.

If you have any questions about these Terms and Conditions, please contact Gachoki Studios by email at info@gachoki.com

1. Definitions and Interpretation

1.1. In this Terms and Conditions:

“Acceptance Period” means 3 Business Days beginning on the date of actual delivery

“Affiliate” means an entity that Controls is Controlled by, or is under common Control with the relevant entity;

“Agreement” means this agreement and any amendments to it from time to time;

“Amendments” means alterations to Work in Progress which results in the estimated lead time as set out in the Creative Brief or the estimated time communicated by the Agency, to complete that Work in Progress or the level of personnel or cost required to perform the Services, being exceeded.

“Animation Services” means creating an animated video for a Client’s business, organization, brand, or product. This may include idea generation, storyboarding, scriptwriting, voiceover, bespoke or stock music and sound effects, bespoke or stock graphic design, illustration, and character design, filming, 2D animation or 3D animation,

“Applicable Laws” means any present or future law relating to the Services including any code of practice, adjudication, decision, guideline, or direction including any modification, revision, or replacement thereof from time to time;

“Approved File Format” to include “.webp”, “.pdf”, “.mp4” and “.eps” file formats and such other formats, electronic media, and other platforms as agreed between the Agency and the Client and set out within the scope of any Instruction accepted by us from time to time.

“Business Day” means any weekday, other than Saturday or Sunday or a bank or public holiday in Kenya;

“Business Hours” means between 8:00 am and 5:00 pm Kenyan time on a Business Day;

“Contract” is the contract created between us following your acceptance of our Proposal and Quotation for the supply of Services, by these Terms.

“Creative Brief” means the creative specification produced by us as our interpretation of your Instruction setting out the description and scope of services required to produce the Deliverables and which is agreed between us before the commencement of the Services and which may be revised as required from time to time upon our mutual agreement.

“Deliverables” means any products or services produced by the Agency based upon your Instruction whether that is carried out by us in single or multiple phases, which may include, the production of the Creative Brief, mood board, or other forms of a design concept, the proofs, designs, images, photographs, video footage, animation files, artwork, graphics, models, copy, communications, digital or hard copy, software, footage, features, characters or other Deliverables commissioned by you and set out in any Instruction placed by you that is produced by the Agency by these Terms.

“Discovery Process” means that phase in the performance of the Agency’s Services that explores and considers the Client Instruction to produce the Creative Brief.

“Final Works” means the final versions of Work in Progress produced by the Agency which shall be submitted to the Client for approval.

“Intellectual Property Rights” means patents, rights to inventions, copyright, and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other Intellectual Property Rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Instruction” means any order, instruction, statement, work, or brief submitted by you for our Services following acceptance of our Proposal based on the Creative Brief or Specification as the case may be.

“Logo Design Services” means the design of a logo or set of logos or branding produced by us under the Creative Brief.

“Marketing Materials” means any of the Agency’s proprietary or promotional material in any form or on any medium, to promote, market, or otherwise advertise our Services including but not limited to catalogs, newsletters, brochures, presentation folders, case histories, annual reports, manuals, technical bulletins, posters, labeling and recruitment, and any electronic materials, whether on our website, social media, or any other means of electronic communication.

“Proprietary Materials” means any materials, publication brochures, designs, formats, concepts, drawings, graphics, illustrations, images, artwork, footage, or materials of any kind owned by or used by the Agency in the performance of the Services or that relate to our business generally;

“Services” includes any or all of our Animation Services, Design Services, Filming Services or any services related to the production of Deliverables, performed under any Creative Brief agreed upon between us.

“Visual Effects Services” means creating imagery or manipulating outside the context of a live-action shot in filmmaking and video production. The integration of live-action footage and other live-action footage or CG elements to create realistic imagery animated video for a Client’s business, organization, brand, or product. This may include idea generation, storyboarding, scriptwriting, voiceover, bespoke or stock music and sound effects, bespoke or stock graphic design, illustration and character design, filming, 2D animation or 3D animation,

“Acceptance Criteria” has the meaning given to it in Clause [14.1];

“Fees” means the amounts payable by the Customer to Gachoki Studios under or in relation to this Agreement;

“Confidential Information” means:

  1. any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
  2. the terms (but not the existence) of this Agreement;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and

“Controlled” will be construed accordingly);

“Customer Works” means the works and materials provided to Gachoki Studios by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;

“Defect” means a defect, error, or bug having a material adverse effect on the appearance, operation, or functionality of the Website but excluding any defect, error, or bug caused by or arising as a result of:

  1. an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, or sub-contractors;
  2. an incompatibility between the Website and any other application, program, or software (other than the Customer Works and the Third Party Works).
    “Delivery Date” means the date for delivery of the Website;
    “Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works, and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
    1. the Customer Works; and
    2. the Third Party Works;

“Effective Date” means the date of execution of this Agreement;

“Force Majeure Event” means an event or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars);

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the

“Intellectual Property Rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs);

“Services” includes any or all of our Animation Services, Visual Effects Services, Still Render Services, Design Services, Filming Services, or any services related to the production of Deliverables, performed in accordance with any Creative Brief agreed between us.;

“Software Elements” means the Website excluding:

  1. the Design Elements;
  2. the Customer Works; and
  3. the Third Party Works;

“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);

“Term” means the term of this Agreement;

“Unlawful Content” has the meaning given to it in Clause [16.1];

“Work in Progress” any single tranche or any element of output generated and/or produced by us during the performance of the Services, whether in a hard copy or digital format of whatever form or medium including any element of any Deliverables.

“Year” means 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or any anniversary of the Effective Date.

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:

  1. that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time;
  2. and any subordinate legislation made under that statute or statutory provision.

1.3 Clause headings do not affect the interpretation of this Agreement.

2. Engagement

2.1 These Terms set out how we deliver our Services and regulate the Contract we enter into with you. Receipt by us of your signed Confirmation Acceptance Form (defined in clause 3.6 below) indicates acceptance of our Proposal and your agreement to these Terms.

2.2 The Contract between us under the Terms and Conditions on this page shall commence with effect from the date of either the following:

  1. When you accept our quotation
  2. When you accept our proposal
  3. When you pay a deposit for your project

3. Client Instruction

3.1 You can submit a request for our Services by email to info@gachoki.com or otherwise via our website inquiries forms. If you are an existing Client or your Instruction is part of a larger project that we are undertaking for you, any Instructions placed with your nominated Agency account manager will be processed in accordance with these Terms unless otherwise agreed in writing between us.

3.2 Your Instruction sets out the Services you need from the Agency, any Deliverables you require us to produce, and other bespoke or specific requirements that you may have.

3.3 Your Instruction should contain a clear description of your requirements, any brief you wish us to consider, and any Deliverables you wish us to produce.

3.4 Upon consideration of your Instruction, we will send you our Proposal including any recommendations of what is required to produce the Deliverables, which may include our suggested timescales and any project methodologies that we consider may be needed to meet your requirements.

3.5 Our Proposal shall only remain valid for 30 Business Days from its date of issue by us. The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you.

3.6 The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you. When you notify us that you accept our Proposal (either by responding to our email containing our Proposal or otherwise requesting the Agency to proceed based on our Proposal which indicates acceptance), the Agency’s written acceptance of your Instruction will be sent to you, which you must confirm agreement to these Terms.

3.7 These Terms apply to the Contract between us to the exclusion of any other terms that you, the Client, or anyone on your behalf, seeks to impose or incorporate, into our agreement with you at any time, or any terms that may be implied by trade, custom, practice or course of dealing.

4. Client’s Obligations

4.1 Gachoki Studios shall receive from the client all the documents, information, and data necessary to deliver the agreed Services in the form as requested by Gachoki Studios. As far as Gachoki Studios creates or adapts designs or provides design Services for the client under this Contract, the client shall provide to Gachoki Studios a complete requirements specification as well as all the required test data in the form that Gachoki Studios requests. The user requirements specification shall become binding as soon as Gachoki Studios consents to it in writing. Upon request, Gachoki Studios shall provide support to the client in drawing up the user requirements specification against separate compensation.

4.2 The client shall use his/her best efforts to support Gachoki Studios in delivering the Services and take all the measures required to attain the project goals which do not expressly fall under the obligations of Gachoki Studios. The client shall keep additional copies of all data handed over to Gachoki Studios on its premises to ensure that restoration will be possible in case the data is damaged or lost. Support, as well as Services and products to be supplied by the client, shall be provided at no cost to Gachoki Studios.

4.3 The client shall name an appropriately qualified employee or contact person who shall be capable of providing relevant information required for the Contract to be executed and of taking or initiating any necessary decisions. In the event no name is given officially, the first employee or contact person that got in touch with Gachoki Studios shall be deemed as the appropriately qualified employee or contact person who shall be capable of providing relevant information to Gachoki Studios, required for the Contract to be executed

4.4 If the performance of the Services is prevented or delayed by any act or omission by the Client or failure by you to perform any relevant obligation (“Client Default”):

  1. We shall, without limiting our other rights or remedies have the right to suspend the performance of the Services until you remedy the Client Default, and we shall be entitled to rely on the Client Default to relieve us from the performance of the Services to the extent performance is prevented or delayed by Client Default;
  2. We shall not be liable for any costs or losses sustained or incurred by you that arise directly or indirectly from Client Default; and
  3. You shall reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.

5. Service Delivery

5.1 Unless otherwise agreed upon, Gachoki Studios shall deliver the Services on its premises. As far as Gachoki Studios performs activities on the client’s premises, the client shall provide adequately equipped workplace(s).

5.2 In delivering the Services, Gachoki Studios shall have the right to use third parties or other partnering companies. Unless otherwise agreed upon, the delivery of training Services by Gachoki Studios is not included in the Contract.

5.3 A project shall be considered abandoned after 60 consecutive days have passed since the last communication received from the Client. In all abandoned projects, deposits are forfeited without the option for reclamation. Any renewal of the project after termination will require a new agreement, fee schedule, and deposit.

5.4 The Agency shall supply the Services to you in accordance with the Creative Brief and these Terms in all material respects.

5.5 Where the nature of the Services is such that we consider it appropriate to provide you with an estimate of any phases, performance milestones, or completion dates for the Services, please note such dates shall be estimates only and time shall not be of the essence for performance of the Services or the completion of Deliverables. Time estimates depend on several factors that may change during performing the Services, but we shall do our best to communicate any changes to you as soon as possible You have notified us in your Instruction of key milestones dates that are important to your business.

5.6 The Agency shall have the right to make any changes to the Services that are necessary to comply with any Applicable Laws or safety requirements or which do not materially affect the nature or quality of the Deliverables, but we shall always notify you before implementing any such changes to the Services in any such event. If such changes result in any change to our Proposal this will be added to our Proposal and a revised Proposal sent to you for approval before continuing the Services. Certain changes may require the payment of additional charges for which the Client is responsible and will be included in our revised Proposal.

5.7 If you do not agree to any revised Proposal sent as a result of changes referred to in clause [3.6] above, or as a result of changes you require to the Creative Brief you may issue a written notice to terminate our Services but please note the Agency is entitled to recoup in full all Charges incurred in respect of Work in Progress carried out up to the date of termination which will be charged on a time and materials basis.

6. Changes to Work in Progress

6.1 Gachoki Studios acknowledges that the client may request amendments to the agreed-upon project scope. However, it is important to note that not all requested amendments will be implemented. Gachoki Studios reserves the sole discretion to accept or reject any client’s amendment request.

6.2 When Gachoki Studios accepts an amendment request, the client will be promptly issued with a new quotation, new timeline and invoice outlining the costs and time associated with the requested changes. Payment for these amendments is required upfront before any work on the amendments commences.

6.3 In the event that Gachoki Studios rejects a client’s amendment request, it is important to understand that this rejection does not relieve the client of the responsibility to fulfill their payment obligations for the work already completed as per the initial project agreement.

7. Approval of Final Works

7.1 Gachoki Studios retains all rights of ownership of all pre-final production work samples sent to the client for approval. All samples sent to a client via any media shall be for approval and disapproval purposes only. The client shall not reproduce, distribute, edit, or use these samples without documented consent from Gachoki Studios. The client is obligated to respond to samples soonest possible. If the client does not respond within 48 (forty-eight) hours after receiving a sample of work, it will be assumed to be approved by the client to continue with the project as it is.

7.2 The Agency shall transmit the Final Works to the Client for proofreading, preview, or review and approval, in an Approved File Format, where possible, via our Project Management System.

7.3 You shall access and use the Project Management System in accordance with our instructions and any relevant terms of use at all times.

7.4 We may also, at our discretion watermark the Final Works and require that they be deleted from your system at any point after they have been received by you.

8. Portfolio

8.1 You consent that the Agency may display and exhibit the Deliverables, which may or may not include reference to the Client or your business, products, or Services, to our prospective clients in any Marketing Materials and on our Website or social media for the promotion of our Services.

8.2 If you do not wish us to publish Client details, you should notify us in writing in advance by setting it out clearly in the Instructions. The Agency shall not be liable for publication if we have not been notified of the Client’s objection to publication.

9. Termination

9.1 Without affecting any other right or remedy available, either party may terminate the Contract by giving the other party one month’s written notice. The Client’s right to terminate is strictly subject to payment in full of all outstanding Charges including accrued interest (if any).

9.2 In the event of cancellation of an assignment, ownership of all copyrights and the original artwork shall be retained by Gachoki Studios unless the client requests the work as it is. The cancellation fee for work completed, and expenses already incurred, shall be paid by the Client.

9.3 The cancellation fee is based on the hours submitted, if the project is on an hourly basis, or a percentage based on the time estimate for the entire job. A 100% cancellation fee is due once the project has been finished, whether delivered to the client or not. If the project is on an hourly basis and the project is canceled by the client, the client agrees to pay no less than 100% of the hours already billed for the project at the time of cancellation. Cancellation shall be in writing.

10. Changes in Deadlines and Scope of Services

10.1 The scheduled deadlines agreed upon in the Contract shall be extended appropriately if Gachoki Studios is prevented from delivering the agreed Services for reasons for which Gachoki Studios is not responsible. Reasons for which Gachoki Studios is not responsible shall, without limitation, include any delays or substandard products/services/support supplied by the client, mobilization of troops, war, insurrection, natural disasters, changes in laws after the conclusion of the Contract, strikes, or lockouts (“force majeure”). Any additional expenses arising to Gachoki Studios from such events shall be borne by the client.

10.2 Changes in the scope of Services in terms of quality and/or quantity (change requests), especially changes in the client requirements specification or the accepted specifications, shall be subject to a written agreement, with the related deadlines and compensations having to be adjusted accordingly. Unless otherwise agreed upon, Gachoki Studios shall provide extra Services only against applicable payment to be agreed in advance in writing.

11. Charges and Payment

11.1 The Client shall reimburse Gachoki Studios for all expenses arising from this assignment, including the payment of any sales taxes due on this assignment, and shall advance Gachoki Studios for payment of said expenses, including but not limited to Stock Photography, Artwork, Voice Artists and or any other material needed for the project. Duplication costs are not included at the time the quotation is prepared unless the client requests.

11.2 The Charges for the performance of the Services requested in your Instruction are based on our Proposal, which may if you have requested changes, be updated and revised from time to time;

11.3 We appreciate Clients may have rigorous deadlines or expedited lead times and will try to facilitate you where possible which may require working beyond our standard working hours. We shall be entitled to charge an overtime rate of 20% percent of our Hourly Rate or the Charges set out in our Proposal to you (or such alternative increased rate as we deem appropriate in the circumstances) on a pro-rata basis for each part-day or for any time spent by Agency personnel performing Services outside Working hours. Where we identify from your Instruction or following the production of the Creative Brief that working out of hours is necessary we shall set out our overtime rate in our Proposal. Otherwise, where the need arises in the course of the performance of any Services, we shall notify you of our overtime rates and agree to that with you in advance of performing Services outside our standard working hours.

11.4 We shall be entitled to charge you for any expenses reasonably incurred by us, our personnel, or any other individual engaged in the performance of the Services including, but not limited to, travel expenses, hotel costs, subsistence, and any associated expenses, and for the cost of services provided by third parties for the performance of the Services, together with the cost of any materials

11.5 We shall be entitled to increase our Charges and any Proposal previously given in connection with performing the Services providing that we notify you and agree on such increases with you in advance. In any event, we shall always be entitled to increase our Charges to reflect any increase in costs incurred by the Agency as a result of RPI.

11.6 Our Charges are exclusive of value-added tax chargeable for the Services which will be set out in addition to our invoice and shall be payable in full by you in accordance with clause [11.1].

11.7 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law). We may, at any time, without limiting our other rights or remedies, set off any amount owed to us by you against any amount that is payable or repayable to by you by us.

11.8 Unless otherwise agreed upon, Gachoki Studios shall calculate the amounts payable in compensation based on hourly rates specified in the Contract. The amounts payable shall be charged at the end of each month based on the reports on services delivered submitted by Gachoki Studios.

11.9 As far as Gachoki Studios provides services at fixed prices (fixed or all-in prices), Gachoki Studios shall be entitled to request an advance payment of at least fifty percent (50%) of the fixed price (fixed or all-in price); and payment dates shall be agreed in the Contract dependent on the progress of service delivery (“milestones”). Irrespective of the pricing model, Gachoki Studios’s prices shall be always considered net prices exclusive of VAT or any other applicable taxes, which shall be charged separately. The balance must be cleared immediately after your project is complete.

11.10 Service delivery on-site at the client shall be charged at a half day’s rate at least. The markups generally applicable at Gachoki Studios shall be charged for services delivered outside normal working hours (Sunday to Thursday, 10.00 a.m. to 7.00 p.m.); on Fridays, Saturdays, or public holidays as well as on days which are generally non-working days at Gachoki Studios.

11.11 Payment shall be due within ten (10) days from the date of the invoice without deductions unless there is a documented payment agreement. If the client defaults in payment, Gachoki Studios shall be entitled to claim interest on arrears as legally applicable. Should the client’s default in payment exceed fourteen (14) days, Gachoki Studios shall have the right to cease the delivery of all services without the need of so notifying the client in advance and to make the compensation for all services already provided immediately due and payable notwithstanding any dates fixed for payment. For Web Design services, Gachoki Studios shall have the right to take down the website without the need to notify the client should they default in payment.

11.12 The grant in full, of any license right of copyright is conditioned on receipt of full payment. The client is to pay for all services and products provided by Gachoki Studios whether they use the products or not since the work has already been done as requested.

11.13 Travel time of Gachoki Studios employees shall be considered working time. Also, the client shall reimburse travel costs at the same rate as they occur. In the case of travel by car, the legally applicable mileage-based flat rate shall be charged. In the case of travel by airplane, the price for the ticket shall be charged. Other ancillary expenses, such as telephone costs, shall be charged as incurred.

11.14 The client shall not have the right to withhold or offset payment on the grounds of any warranty claims or other claims unless approved of in writing by Gachoki Studios or asserted by court order. Until the compensation due to Gachoki Studios has been paid up in full, plus interest and cost,

11.15 Gachoki Studios shall reserve the title to all goods delivered by Gachoki Studios. Unless otherwise agreed upon, the client shall not have the right to use the products and services delivered by Gachoki Studios until he/she has fully paid up all amounts due to Gachoki Studios.

11.16 All fees, taxes, and duties arising under this Contract, such for instance legal transaction fees, import taxes, or withholding taxes, shall be borne by the client. In case Gachoki Studios is charged with any such fees, taxes, or duties, the client shall fully indemnify Gachoki Studios against any payments thereof.

12. Estimates

The fees and expenses shown are minimum estimates only unless an hourly fee has been agreed upon. That fee will be an Hourly Fee per hour and Gachoki Studios shall keep the client apprised of a tally of hours within a reasonable period. Final fees and expenses shall be shown when the invoice is rendered. The fees and expenses shown are minimum estimates only unless the quote and/or invoice is marked Firm Quote, otherwise, the stated hourly fee will be payable on all time over that which was quoted with a minimum in 30-minute increments.

13. Invoices

All invoices are payable within 30(thirty) days of receipt unless there is a documented payment agreement. A 5% per month service charge is payable on all overdue balances for reissuing each invoice at 45, 60, 75, and 90 days from the date of the original invoice.

14. Acceptance and Warranty

14.1 As far as the design services (shortly called “designs”) are to be created or adapted by Gachoki Studios, such designs shall be submitted to acceptance procedures by the client immediately after they have been made available for acceptance. If defects are identified during acceptance, Gachoki Studios shall remove the defects within a reasonable period at no cost to the client and then make the designs available for renewed acceptance. If the client fails to perform acceptance procedures for any reason other than the presence of a major defect that significantly impairs the use of the designs, the designs shall be considered accepted 1(one) week after having been made available for acceptance, but in any case, as soon as it is being used or passed on by the client. These provisions shall apply mutatis mutandis to documents, such as detailed specifications or client requirements specifications, to be drawn up by Gachoki Studios under the Contract. After acceptance by the client, such documents shall be regarded as the only basis for service delivery by Gachoki Studios.

14.2 Defects that occur within a warranty period of 1 month (for game designs- six (6) months) after acceptance of the designs are duly given notice of by the client in writing shall be cleared by Gachoki Studios within a reasonable period at no cost to the client. The client shall submit all documents, information, and data necessary for fault clearance purposes as may be requested by Gachoki Studios.

14.3 As regards design scopes that the client has extended, Gachoki Studios shall provide a warranty up to the added extension. In all other respects, warranty for designs modified by the client without the prior consent of Gachoki Studios shall be excluded, even if a fault occurs in a non-modified part unless the client proves that there is no causal relationship between the fault and the modifications made by the client.

14.4 The warranty provisions outlined in Section 7 shall apply mutatis mutandis to deliveries and services provided by Gachoki Studios. However, as far as the delivery of services by Gachoki Studios includes the delivery of services and products supplied by third parties, the special terms and conditions of warranty of the respective vendor shall prevail.

14.5 Any claims for warranty raised by the client exceeding those mentioned in the present General Terms and Conditions shall be excluded, irrespective of which legal grounds they might be based on.

15. Liability

15.1 To the extent permitted by mandatory law, Gachoki Studios shall not be liable for direct or indirect damage, loss of information or data, operating interrupts, loss of earnings, and other consequential damages.

15.2 Client agrees, shall not hold Gachoki Studios’ agents or employees liable for any incidental or consequential damages that arise from Gachoki Studios’ failure to perform any aspect of the project promptly, if such failure was caused intentionally, unintentionally or negligent acts or omissions of Client, any client representatives or employees, a third party or factors beyond the control of Gachoki Studios e.g. Breakdowns, Power Blackouts, Riots, etc. The client shall be updated in case such unforeseeable circumstances occur.

15.3 The Client shall indemnify Gachoki Studios against all claims and expenses, including attorney’s fees, due to the uses for which no release was requested in writing or for uses that exceed the authority granted by a release.

15.4 Any warranty and damage claims from the client other than those expressly mentioned in these Terms and Conditions, irrespective of the legal grounds they might be based on, in particular those due to loss or damage resulting from consulting, support in the implementation of design products, or software product defects, shall be excluded unless there is an obligatory liability, for instance for damage caused intentionally or by gross negligence proved by the client.

16. Intellectual Property Rights and Use

16.1 Before using the Deliverables in any way, it is always the Client’s responsibility to ensure that the content contained in them, does not infringe the Intellectual Property Rights or Trademarks of any third party. The Agency does not conduct such investigations and by entering into a Contract with us you agree that you are solely responsible for the conduct of any necessary investigations and obtaining a license to use third party Intellectual Property where required, including for all related costs. Neither the Agency nor anyone acting on our behalf shall be liable for any dispute arising from or in connection with the use or infringement of any Intellectual Property Rights of any third party, in any jurisdiction.

16.2 Client acknowledges that the Agency cannot and does not advise, nor will the Agency be responsible, for any legal matters arising out of or in connection with your Instruction, any Work in Progress or Deliverables, or the protection of copyright or other Intellectual Property Rights. Clients must seek their own legal advice on protecting their Intellectual Property Rights, including copyright in any branding, design, logos, or other images or content that may arise as a result of the performance of the Services.

16.3 Any samples, drawings, content, images, proofs, video footage, animation files, descriptive matter, or advertising issued by the Agency, or contained in any of our catalogs or brochures or detailed on our Website, whether in connection with the Services or any other services provided by the Agency, are © Copyright Gachoki Studios and are issued or published for illustrations purposes only, to enable us to describe our Services. They shall not form part of the Contract or have any contractual force between us.

16.4 Subject to clause [11.1] above, upon payment in full by the Client, ownership and any Work in Progress or Deliverables shall transfer to the Client. Until the Agency has been paid in full for the Services in accordance with clause [11.1] above, any Work In Progress or Deliverables or any element of the Services shall be owned by the Agency.

16.5 You acknowledge that you may not always own the copyright or other Intellectual Property Rights where such rights are owned by third parties and licensed for use to the Agency or generally. For instance, the Client does not own the copyright in ‘stock’ photographs or film footage, negatives, or fonts (unless otherwise agreed between the Agency and the Client and set out in the Proposal) and your use of any third party Intellectual Property Rights is conditional upon the Agency obtaining a written license from the relevant licensor to entitle us to license such rights to you or incorporate into any Work In Progress or Deliverables we produce for you. If we need to obtain those third-party licenses to fulfill the Creative Brief, you shall be solely responsible for the payment of any licensing fees that any licensor charges to the Agency for the use of such content. Where the Client requires us to use specific fonts that have been used in your previous branding or other proprietary material or that of any third party, you need to ensure you obtain the license to use such fonts and you are solely responsible for payment of any related licensing fees which, for us to commence the Services, we advise Clients to obtain in advance of the Instruction.

16.6 All Proprietary Materials, remain at all times our exclusive property, and nothing in the performance of the Services shall operate to transfer or assign the ownership of such Proprietary Materials to the Client at any time.

17. Dispute Resolution

17.1 All disputes arising out from a Contract, including or related to it, including those arising from or concerning its interpretation, invalidity, performance, or termination, as well as the disputes for filling gaps in a Contract or its adaptation to new facts, shall be settled by an amicable effort of both parties.

17.2 Any disputes above the maximum limit for small-claims court arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed-upon arbitrator according to the rules of the Kenyan Law. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The client shall pay all arbitration and court cost, reasonable attorney’s fees, and legal interest on any award of judgment in favor of Gachoki Studios. All actions, whether brought by the client or by Gachoki Studios will be filed in Gachoki Studios’s county of business.

18. Term of Contract

18.1 Gachoki Studios shall deliver the consulting and design Services either for the duration of the project agreed upon with the client or for the duration agreed upon in the Contract. As far as Services under this Contract are provided on an ongoing basis, each of the parties to the Contract shall have the right to terminate the Contract in writing by registered mail giving 1-month notice. Any designs not yet accepted at the time the Contract is terminated shall, in any case, be completed and compensated for under the terms and conditions of the Contract.

18.2 In all other respects the parties to the Contract shall have the right to prematurely terminate, in writing by registered mail, a Contract concluded for an indefinite period for good cause.

Good cause shall exist, in particular, when the other party’s property and assets are subjected to insolvency proceedings when the opening of such proceedings is rejected due to a lack of assets, or when the other party to the Contract violates material obligations under the Contract, in particular, payment obligations so that the terminating party can no longer be reasonably expected to continue the Contract.

19. Concluding Clauses

19.1 Collateral agreements and alterations to the Contract need to be made in writing to be effective.

19.2 Gachoki Studios shall have the right to transfer the Contract with all its rights and obligations to third parties. The client must not transfer rights and obligations under the Contract without Gachoki Studios’s prior written consent.

19.3 If any of the provisions of the Contract is or becomes invalid, this shall not serve to invalidate the remaining provisions thereof. In such cases, the parties shall make every effort to find provisions whose business results would match those of the invalid provision as closely as possible.

20. Changes to Terms and Conditions

We may update our Terms and Conditions from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately after they are posted on this page.

Please read these Web design and development Terms carefully, as they set out our and your legal rights and obligations concerning our web design and development services.

You should print a copy of these Terms for future reference. We will not file a copy specifically for you, and they may not be accessible on our Website in the future.

These Terms are available in the English language only.

If you have any questions or complaints about these Terms or our Services, please contact Gachoki Studios by email at info@gachoki.com

AGREEMENT:

1. Definitions and Interpretation

1.1. In this Agreement:
“Acceptance Criteria” has the meaning given to it in Clause [5.2];
“Acceptance Period” means 2 Business Days beginning on the date of actual delivery of the Website to the Customer;
“Affiliate” means an entity that Controls is Controlled by, or is under common Control with the relevant entity;
“Agreement” means this agreement and any amendments to it from time to time;
“Business Day” means any weekday, other than Saturday or Sunday or a bank or public holiday in Kenya;
“Business Hours” means between 08:00 hrs and 17:00 hrs Kenyan time on a Business Day;
“Fees” means the amounts payable by the Customer to Gachoki Studios under or in relation to this Agreement;
“Confidential Information” means:

  1. a) any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
  2. b) the terms (but not the existence) of this Agreement;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer Works” means the works and materials provided to Gachoki Studios by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;
“Defect” means a defect, error, or bug having a material adverse effect on the appearance, operation, or functionality of the Website but excluding any defect, error, or bug caused by or arising as a result of:

  1. a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, or sub-contractors;
    b) an incompatibility between the Website and any other application, program, or software (other than the Customer Works and the Third Party Works).
    “Delivery Date” means the date for delivery of the Website;
    “Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works, and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
  2. a) the Customer Works; and
    b) the Third Party Works;

“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs);
“Services” has the meaning given to it in Clause [3.1];
“Software Elements” means the Website excluding:

  1. a) the Design Elements;
    b) the Customer Works; and
    c) the Third Party Works;

“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
“Term” means the term of this Agreement;
“Unlawful Content” has the meaning given to it in Clause [7.1];
“Website” means the website or web application to be developed by Gachoki Studios for the Customer under this Agreement; and
“Year” means 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or any anniversary of the Effective Date.

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
b) any subordinate legislation made under that statute or statutory provision.

1.3 Clause headings do not affect the interpretation of this Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilized in this Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.

2. Term

This Agreement will come into force on the Effective Date and will continue in force until the acceptance of the Website by the Customer in accordance with Clause [5], upon which it will terminate automatically unless terminated earlier in accordance with Clause [14].

3. The Services

3.1 Gachoki Studios will:
a) Design and deliver the Website;
b) Host the Website on a third-party server if applicable
c) incorporate the Customer Works and Third Party Works into the Website;
d) keep the Customer informed of the progress of the Website’s development; and provide the Customer with reasonable access to the Website during the Term;
e) provide the Customer, after the Term with reasonable access to the Website content by means of a content management system.
f) try to provide the Customer with the business e-mail address of choice based on the domain name used by the Website.
(the “Services”).

3.2 Gachoki Studios will use all reasonable endeavors to perform the Services in accordance with the timetable set out in accordance with the Customer; however, Gachoki Studios does not guarantee that that timetable will be met.

3.3 Only one round of revision is included in the quoted price. Further revisions will incur additional costs to the original quotation. Gachoki Studios will generate a revised quotation capturing the additional costs.

3.4 In the event of cancellation of an assignment, ownership of all copyrights and the original artwork shall be retained by Gachoki Studios unless the client requests the work as it is. The cancellation fee for work completed, and expenses already incurred, shall be paid by the Client.

3.5 Cancellation fee is based on the percentage of work done. The percentage of work done is derived from the proposal document or scope of work document. A 100% cancellation fee is due once the project has been finished, whether delivered to the client or not. Cancellation shall be in writing. When the Client cancels a web design project after the website is uploaded to Gachoki Studios’ server for viewing, the client forfeits the deposit paid to Gachoki Studios at the start of the project.

3.6 A project shall be considered abandoned after 5 consecutive days have passed since the last communication received from the Client. In all abandoned projects, deposits are forfeited without the option for reclamation. Any renewal of the project after termination will require a new agreement, fee schedule, and deposit.

3.7 Website maintenance starts the date the website is uploaded to your hosting domain server. It is valid for 12 months from the date the website is transferred to your hosting domain server.

3.8 Website maintenance and customer support are subject to full payment for web design services. Default in payment will result in the withdrawal of maintenance and customer support services without notice thereof. Gachoki Studios will not be liable for any damages, losses, or inconveniences resulting from the withdrawal of maintenance and customer support services due to the failure of the client to make full payment on time.

3.9 In a website redesign project, the old website will be deleted and will not be recoverable. If the client requires the old website backed up, he/she must communicate in writing before the new website is uploaded.

3.10 Client accepts Gachoki Studios will use WordPress CMS to build their website, unless agreed otherwise.

 

4. Customer Obligations

4.1 The Customer will provide Gachoki Studios with:
a) such co-operation as is required by Gachoki Studios (acting reasonably) to enable the performance by Gachoki Studios of its obligations under this Agreement, and
b) all information, documents, and feedback required by Gachoki Studios (acting reasonably) in connection with the provision of the Services. Failure by the client to provide the information required to perform service will result in Gachoki Studios terminating and deleting the project. The project will not be recoverable and starting a new one will require a new quotation and a new start. Deposit payed by the client will be forfeited.

4.2 The Customer will be responsible for procuring any third-party co-operation reasonably required by Gachoki Studios to enable Gachoki Studios to fulfill its obligations under this Agreement. The customer will be responsible for providing graphics and pictures that will appear on the website.

4.3 In the event the Customer takes over the website’s Super Administrator account of the website, the Customer accepts to purchase their API keys, plugin licenses, and theme licenses to proceed with their development. Gachoki Studios shall not be liable for any loss, inconveniences, or damages resulting from the Customer taking over the website’s Super Administrator account.

5. Delivery and Acceptance

5.1 Gachoki Studios will use all reasonable endeavors to deliver the Website to the Customer for acceptance testing on or before the Delivery Date.

5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
a) whether the Website conforms in all material respects with the agreed specification of the Website;
b) whether the Website has any Defects;
(the “Acceptance Criteria”).

5.3 If the Website meets the Acceptance Criteria, the Customer will send to Gachoki Studios a written notice during the Acceptance Period confirming acceptance of the Website.

5.4 If the Website does not meet the Acceptance Criteria:
a) The Customer will send to Gachoki Studios a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria, and
b) Gachoki Studios will have a further remedial period to modify the Website so that it meets the Acceptance Criteria.

5.5 The Website will be deemed to have been accepted by the Customer if:
a) The Customer does not give any notice to Gachoki Studios under either Clause [5.3] or Clause [5.4] during the Acceptance Period, or
b) the Customer publishes the Website or uses the Website for any purpose other than development and/or testing.

5.6 To enable Gachoki Studios to conduct website maintenance smoothly, our account will be the only administrator account on the website. Your highest user level will be ‘editor’. If you wish to assume administrator privileges on the website, we will oblige by upgrading your account to administrator, and then we shall delete our administrator account. From there onwards, you will be responsible for your website maintenance. Gachoki Studios shall not be held responsible for any downtime, breakdown, or update. All repairs, upgrades, updates, and restoration will be charged accordingly.

5.7 Gachoki Studios will provide the customer a link to where their website is hosted on our server for Acceptance Criteria. The link will be functional and accessible and expire after 48 hours without notice from the time it was presented to the customer for preview purposes. The number of times a preview link will be made available to the client is limited to 2 times. After the two opportunities, the link will be made available and operational to the customer at a fee predetermined by Gachoki Studios.

6. Third-Party Works

Any license fees for Third-Party Works and plugins are included in the Fees unless the client decides to take over the development of their website. The client agrees upon taking over admin and development privileges, to purchase license keys to third-party works and plugins to continue using their respective features. 

7. Unlawful Content

7.1 The Customer will ensure that the Customer Works do not infringe any applicable laws, regulations, or third-party rights (“Unlawful Content”).

7.2 The Customer will indemnify and will keep indemnified Gachoki Studios against all damages, losses, and expenses (including legal expenses) arising as a result of any claim that the Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.

8. Fees and Payment

8.1 Gachoki Studios will issue invoices for the Fees to the Customer on the relevant invoicing dates, or (if earlier) upon the acceptance of the Website by the Customer. Quoted prices do not include posting content like blog posts or products to the website. Post of content will require a separate change order document. Before the commencement of any work, a deposit fee amount determined by Gachoki Studios will be paid by the client. The balance will be paid to Gachoki Studios in full without deductions when the website is complete, on our server, and before transferring the website to the customer’s domain/server.

8.2 Where the time of payment has not been predetermined, the Customer will pay the Fees to Gachoki Studios within 21 days of the date of issue of an invoice issued in accordance with Clause 8.1.

8.3 VAT is applicable on all Fees stated in or in relation to this Agreement.

8.4 Fees must be paid via our Mpesa Till Number, Cash, or by bank transfer, using such payment details as are notified by Gachoki Studios to the Customer from time to time). Cheque payment is acceptable. However respective handover or work will only be done after the cheque payment clears at our bank.

8.5 If the Customer does not pay any amount properly due to Gachoki Studios under or in connection with this Agreement, Gachoki Studios may:
a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate.
b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts
c) Take down the website till full payment and interests have been settled. Gachoki Studios will not be liable for any loss, damages, or inconveniences caused by such a take-down.

8.6 Upon project completion, clients are required to clear any outstanding balance within 30 days. Failure to do so will result in the deletion of the website project and associated files, with the client forfeiting any deposit paid. It is the client’s responsibility to back up their data, and data recovery/restoration may be available for an additional fee if requested after deletion due to non-payment.

9. Intellectual Property Rights

9.1 From the date of acceptance of the Website by the Customer, Gachoki Studios hereby assigns to the Customer all its Intellectual Property Rights in the Design Elements. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions, and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

9.2 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of Gachoki Studios and, from the date of acceptance of the Website by the Customer, Gachoki Studios grants to the Customer a non-exclusive worldwide license to use the Software Elements in connection with the Website, subject always to the other terms of the Agreement and the Customer may only sub-license the rights licensed under this Clause for the limited purposes, and subject to the express restrictions, specified in this Clause. This clause does not apply to premium third-party plugin software. The client agrees to purchase their license and keys to continue using premium third-party plugins and software on their website when they take over administrator privileges.

9.3 The Third Party Works will be either (at the option of Gachoki Studios):
a) supplied in accordance with the relevant licensor’s standard terms for online use;

9.4 Notwithstanding any other provision of the Agreement, the assignments, and licenses granted by Gachoki Studios under this Agreement are subject to the payment by the Customer of all amounts owing to Gachoki Studios under this Agreement in full and on time.

In the event that the Customer owes any amount to Gachoki Studios under this Agreement and fails to pay that amount to Gachoki Studios within 14 days of receiving a notice:

  1. a) requiring it to do so; and
    b) specifying that the assignments will revert and the licenses will terminate if the amount repays unpaid, then Gachoki Studios may immediately revert the assignments and terminate the licenses granted by Gachoki Studios under this Agreement by giving written notice of reversion and termination to the Customer

9.5 Without prejudice to Clause [9.7], Gachoki Studios waives (and will use reasonable endeavors to seek to ensure that its employees and subcontractors waive) any moral rights they may have in the Website arising, so far as is legally possible, any broadly equivalent rights anywhere in the world.

9.6 Gachoki Studios may include the statement “Designed by Gachoki Studios” together with a link to Gachoki Studios’ website on each page of the Website in a position and in a form to be agreed by the parties.

9.7 Should the Website be provided with a content management system, Gachoki Studios may also include a statement together with a link to the CMS provider’s website on each page of the Website in a position and in a form to be agreed by the parties

9.8 The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will only remove any such credit and link from the Website at Gachoki Studios’ request.

10. Warranties

10.1 The Customer warrants to Gachoki Studios that it has the legal right and authority to enter into and perform its obligations under this Agreement.

10.2 Gachoki Studios warrants to the Customer:
a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
b) that it will perform its obligations under this Agreement with reasonable care and skill;
c) that the use of the Website (excluding the Customer Works) by the Customer in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party; and
d) that the Website will continue to operate without any Defects for a period of 12 months from the date of acceptance of the Website (and if the Website does not so operate, Gachoki Studios will, for no additional charge, carry out any work necessary in order to ensure that the Website operates without any Defects during this period).

10.3 The Customer acknowledges that Gachoki Studios has designed the Website to work with web browser technology.

10.4 The Customer further acknowledges that Gachoki Studios does not purport to provide any legal advice under this Agreement or in relation to the Website and Gachoki Studios does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

10.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied in this Agreement or any related contract.

11. Liability

11.1 Nothing in this Agreement will exclude or limit the liability of either party for:
a) death or personal injury caused by that party’s negligence;
b) fraud or fraudulent misrepresentation on the part of that party; or
c) any other liability which may not be excluded or limited under applicable law.

11.2 Subject to Clause [11.1], each party’s liability to the other party under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
a) Neither party will be liable for any:
(i) loss of profits, income, or anticipated savings,
(ii) loss or corruption of any data, database, or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special, or consequential loss or damage;

  1. b) neither party will be liable for any losses arising out of a Force Majeure Event; and
    c) Each party’s liability in relation to any event or series of related events will in no circumstances exceed Ksh 10,000.

11.3 The client acknowledges and agrees that they are solely responsible for understanding and complying with all licenses, taxes, and other legal obligations associated with the acquisition and use of the website developed by Gachoki Studios. Gachoki Studios shall not be held liable for any losses, damages, or legal consequences arising from the client’s failure to meet these obligations.

12. Data Protection

12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Gachoki Studios under this Agreement.

12.2 Gachoki Studios warrants that:
a) It will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Gachoki Studios on behalf of the Customer; and
b) It has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by Gachoki Studios on behalf of the Customer.

13. Confidentiality and Publicity

13.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause [13]. (For the purposes of this Clause [13], the terms of this Agreement constitute the Confidential Information of each party.)

13.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.

13.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.

13.4 These obligations of confidentiality will not apply to Confidential Information that:
a) has been published or is known to the public (other than as a result of a breach of this Agreement);
b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
c) is required to be disclosed by law, or by an order (binding upon the relevant party) of governmental authority, a regulatory body, or a stock exchange.

13.5 Neither party will make any public disclosure relating to the subject matter of this Agreement (including press releases, public announcements, and marketing materials) without the prior written consent of the other party, not to be unreasonably withheld or delayed.

14. Termination

14.1 Either party may terminate this Agreement at any time by giving at least 30 days written notice to the other party.

14.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 7 days of receipt of a written notice requiring it to do so; or

14.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
b) An administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party;
c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement); or
d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her affairs or is the subject of a bankruptcy petition or order.

15. Effects of Termination

15.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.13.

15.2 Termination of this Agreement will not affect either party’s accrued rights (including Gachoki Studios’ accrued rights invoice for and to be paid the Fees) as of the termination date.

15.3 If this Agreement is terminated by the Customer under Clause 14.2 or 14.3 (but not in any other case):
a) Gachoki Studios will provide the Customer an electronic copy of the Website within 30 days;
b) Gachoki Studios will provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Website to the Customer or another service provider, subject to payment of Gachoki Studios’ reasonable expenses; and
c) The Customer will be entitled to a refund of any Fees paid by the Customer to Gachoki Studios in respect of any Services which were to be performed after the date of effective termination and will be released from any obligation to pay such Fees to Gachoki Studios (such amount to be calculated by Gachoki Studios using the proposal document or statement of work document).

15.4 Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Fees on termination, and will not be released from any obligation to pay Fees to Gachoki Studios.

15.5 Where the customer terminates an assignment before the first version of the website is done and after the domain and hosting have been acquired on their behalf by Gachoki Studios, the client will pay a 2,000/= service fee for domain registration and email accounts setup. The fee does not include the hosting package and domain registration fee.

15.6 Where the customer terminates after significant work has been done, refund will be as follows:

a) Termination on Stage 1, during sitemap and layout development: The Client will be refunded 50% of the amount quoted.

b) Termination on Stage 2, during website development: The Client will be refunded 5% of the amount quoted.

c) Termination on Stage 3, during website migration to the client’s server: The Client forfeits the deposit and will reimburse Gachoki Studios for all expenses borne by Gachoki Studios to develop the website.

16. Amendments During the Project

16.1 Gachoki Studios acknowledges that clients may request amendments to their website projects. However, it is important to note that not all requested amendments will be implemented. Gachoki Studios reserves the sole discretion to accept or reject any client’s amendment request.

16.2 Once Gachoki Studios agrees to amendments, the client will receive a new quote and bill for those amendments. Payment must be made before we start making the changes.

16.3 If Gachoki Studios rejects a client’s change request, the client is still obligated to pay for the work already completed based on the initial project agreement.

16.4 Free amendments only include minor changes to your website design. For a complete website redesign, extra charges apply based on the work scope, detailed in an estimate or proposal agreed upon before we start. Any extra amendments during the redesign not initially included may result in further fee adjustments.

16.2 Free amendments are available exclusively during the design and development stage. Any amendments required after the website is on the client’s domain will be subject to a fee. Unused free amendment rounds will be lost.

16.3 The client is restricted to 5 amendments per free round of amendments.

17. General

17.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by registered post, or email, for the attention of the relevant person, and to the relevant address or email address.

17.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours when Business Hours next begin after the relevant time set out below):
a) where the notice is delivered personally, at the time of delivery;
b) where the notice is sent by registered post, 48 hours after posting; and
c) where the notice sent an email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

17.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

17.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

17.5 Nothing in this Agreement will constitute a partnership, agency relationship, or contract of employment between the parties.

17.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.7 Each party may freely assign its rights and obligations under this Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license, or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.

17.8 Gachoki Studios may subcontract any of its obligations under this Agreement to any third party.

17.9 Neither party will, without the other party’s prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ, or otherwise solicit for employment any employee or contractor of the other party who has been involved in the performance of this Agreement.

17.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which is necessary to enable the parties to exercise their rights and fulfill their obligations under this Agreement.
17.11 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree on any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.

17.12 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement and supersedes all previous agreements, arrangements, and understandings between the parties relating to the subject matter of this Agreement. Subject to Clause [11.1], each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.

17.13 This Agreement will be governed by and construed in accordance with the laws of the Republic of Kenya, and the courts of the Republic of Kenya will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

18. Changes to Terms and Conditions

We may update our Terms and Conditions from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately after they are posted on this page.

Please read these Website Maintenance Terms carefully, as they set out our and your legal rights and obligations in relation to our web maintenance services.
You should print a copy of these Web Maintenance Terms for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our Website in the future.

These Web Maintenance Terms are available in the English language only.
If you have any questions or complaints about these Web Maintenance Terms or our Services, please contact us by writing to Gachoki Studios by email to info@gachoki.com

Terms:

1. Definitions and Interpretation

1.1 In these Terms:
“Additional Fees” means additional Fees calculated in accordance with the provisions of the Schedule and payable by the Customer to Gachoki Studios in accordance with Clause [3.5];
Affiliate” means a company, firm, or individual that Controls is Controlled by, or is under common Control with the relevant company, firm or individual;
“Agreement” means these Terms and any amendments to it from time to time;
“Business Day” means any weekday, other than Saturday or Sunday or a bank or public holiday in Kenya;
“Business Hours” means between 08:00 and 17:00 (Kenyan time) on a Business Day;
“Gachoki Studios” means Gachoki Studios, which has its principal place of business at Bruce House 4th floor, Nairobi, Kenya.
“Gachoki Studios Materials” means all works and materials (including text, images, video material, audio material, software, scripts, mark-ups, style sheets, and databases) created by Gachoki Studios and incorporated by Gachoki Studios into the Website pursuant to these Terms;
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the customer for Services under these Terms.
“Effective Date” means the date of execution of these Terms as specified in the Service quote signed by the Customer;
“Fees” means the Monthly Fees and the Additional Fees;
“Force Majeure Event” means an event or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, [failures of any third party internet service provider,] hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Helpdesk Services” means the Services described in Clause [3.1];
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the Services described in Clause [3.2];
“Minimum Term” means the period of 1 Year starting on the Effective Date;
“Monthly Fees” means the amount specified as such in the Schedule, which will be paid by the Customer to Gachoki Studios in respect of each calendar month of Services in accordance with Clause [6];
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedule” means the schedule attached to these Terms;
“Services” means the Helpdesk Services, the Maintenance Services, the Technical Support Services as detailed in Clause [3];
“Services Limit” means the limit to the provision of [Maintenance Services and Technical Support Services] specified in the Schedule;
“Technical Support Services” means the Services described in Clause [3.3];
“Term” means the term of this Agreement;
“Website” means the Customer’s website; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilized in this Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.

2. Term

This Agreement will come into force on the Effective Date and will continue in force for one year or the entire period we provide website maintenance service to the client, upon which it will terminate automatically unless terminated earlier in accordance with Clause [12].

3. Services

3.1 Gachoki Studios will make available, during Business Hours, a telephone/email helpdesk facility to enable the Customer to contact Gachoki Studios in relation to requests for Maintenance Services and Technical Support Services. Gachoki Studios will use reasonable endeavors to respond to requests for support made through the helpdesk.
3.2 Subject to Clause [3.4], upon the request of the Customer through the helpdesk, Gachoki Studios will provide the following Maintenance Services to the Customer during the Term in relation to the Website in accordance with the service levels specified in the Schedule:
(a) Adding new content to the Website (where new content is provided by the Customer to Gachoki Studios);
(b) effecting minor changes to the design of the Website at the direction of the Customer (Gachoki Studios shall determine, acting reasonably, whether any given changes are “minor”); and
(c) effecting minor changes to the software and/or database comprised in the Website at the direction of the Customer (Gachoki Studios shall determine, acting reasonably, whether any given changes is “minor”).
3.3 Subject to Clause [3.4], Gachoki Studios will use reasonable endeavors to attempt to:
(a) answer technical queries relating to the Website; and
(b) resolve faults and errors in the Website (excluding faults and errors in, or caused by: (i) any hardware, or (ii) any software or system external to the Website);
notified by the Customer through the helpdesk, in each case in accordance with the service levels specified in the Schedule.
3.4 Gachoki Studios may refuse to provide Maintenance Services and/or Support Services to the Customer during a calendar month in excess of the Services Limit.

Where the combined total number of person-hours spent providing the Maintenance Services and Support Services during any calendar month exceeds the Services Limit, then:
(a) Gachoki Studios will inform the Customer as soon as reasonably practicable that the Services Limit will be or has been exceeded;
(b) Gachoki Studios will inform the Customer as soon as reasonably practicable of the applicable Additional Fees to complete the requested Maintenance or Technical Support service;
(c) Should the Customer agree to the applicable Additional Fees, Gachoki Studios will carry out the requested Maintenance or Technical Support service and the Customer will pay to Gachoki Studios the applicable Additional Fees.
3.5 Where the Customer does not utilize Maintenance Services and Support Services up to the Support Limit during a calendar month, then the unused Services capacity will be carried over to the next period and so until the end of the Minimum Term where it will be permanently lost to the Customer.

3.6 Website maintenance and customer support are subject to full payment for web design services. Default in payment will result in the withdrawal of maintenance and customer support services without notice thereof. Gachoki Studios will not be liable for any damages, losses, or inconveniences resulting from the withdrawal of maintenance and customer support services due to the failure of the client to make full payment on time.

4. Customer Responsibilities

4.1 The Customer will provide to Gachoki Studios:
(a) the ability to access and make changes to the Website; and
(d) all other co-operation, information, and documentation reasonably required by Gachoki Studios to enable or facilitate the provision of the Services.
4.2 The Customer will be responsible for procuring any third-party co-operation reasonably required for the provision of the other Services.

5. Intellectual Property Rights

Gachoki Studios hereby assigns to the Customer all Intellectual Property Rights in Gachoki Studios Materials. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions, and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

6. Fees and Payment

6.1 Gachoki Studios will issue invoices to the Customer:
(a) for the Monthly Fees, monthly; and
(b) for the Additional Fees, from time to time.
6.2 The Customer will pay the Fees to Gachoki Studios of an invoice issued in accordance with Clause [6.1].
6.3 VAT applicable to all Fees stated in or in relation to this Agreement.
6.4 Fees must be paid by bank transfer or by Gachoki Studios’ pay bill number (using such payment details as are notified by Gachoki Studios to the Customer from time to time).
6.5 If the Customer does not pay any amount properly due to Gachoki Studios under or in connection with this Agreement, Gachoki Studios may:
(a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate.
6.6 Gachoki Studios may vary the Monthly Fees and/or Additional Fees by giving to the Customer at least 60 days’ notice of variation.

7. Warranties

7.1 The Customer warrants to Gachoki Studios that it has the legal right and authority to enter into and perform its obligations under this Agreement.
7.2 Gachoki Studios warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that it will perform its obligations under this Agreement with reasonable care and skill.
7.3 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied in this Agreement or any related contract.

8. Limitations of Liability

8.1 Nothing in this Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability that may not be excluded or limited under applicable law.
8.2 Subject to Clause [8.1], Gachoki Studios’s liability to the Customer under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Gachoki Studios will not be liable for any: (i) loss of profits, income, or anticipated savings, (ii) loss or corruption of any data, database, or software, (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity, or (v) indirect, special or consequential loss or damage;
(b) Neither party will be liable for any losses arising out of a Force Majeure Event; and
(c) Gachoki Studios’s liability in relation to any event or series of related events will in no circumstances exceed the greater of: (i) Ksh 5,000; and (ii) the total amount paid by the Customer to Gachoki Studios under the Agreement during the 3 month period immediately preceding the event or series of events.

9. Data Protection

9.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Gachoki Studios under this Agreement and that the processing of that Personal Data by Gachoki Studios for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.
9.2 Gachoki Studios warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Gachoki Studios on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by Gachoki Studios on behalf of the Customer.

10. Confidentiality

10.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause [10].
10.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
10.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
10.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

11. Force Majeure Events

11.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

12. Termination

12.1 Either party may terminate this Agreement at any time by giving at least 30 days written notice to the other party.
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of this Agreement, and: (i) the breach is not remediable, or (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement.
12.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

13. Effects of Termination

13.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5, 6.5, 8, 10, 13 and 14.3 to 14.12].
13.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
13.3 If this Agreement is terminated by the Customer under Clause [12.2] but not in any other case, the Customer will be entitled to a refund of any Fees paid by the Customer to Gachoki Studios in respect of any Services which were to be performed after the date of effective termination and will be released from any obligation to pay such Fees to Gachoki Studios (such amount to be calculated by Gachoki Studios using any reasonable methodology).
13.4 Save as provided in Clause [13.3], the Customer will not be entitled to any refund of Fees on termination, and will not be released from any obligation to pay Fees to Gachoki Studios.

14. General

14.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by registered post, or sent by email, for the attention of the relevant person (or as notified by one party to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by registered post, 72 hours after posting; and
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
14.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in this Agreement will constitute a partnership, agency relationship, or contract of employment between the parties.
14.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
14.7 Gachoki Studios may freely assign its rights and obligations under this Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
14.8 Gachoki Studios may subcontract any of its obligations under this Agreement to any third party.
14.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which is necessary to enable the parties to exercise their rights and fulfill their obligations under this Agreement.
14.10 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
14.11 Subject to Clause [8.1]:
(a) This Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements, and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and
(c) Neither party will have any liability other than pursuant to the express terms of this Agreement.
14.12 This Agreement will be governed by and construed in accordance with the laws of the Republic of Kenya, and the courts of Kenya will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

The Schedule

Maintenance Services – Service Levels

Gachoki Studios will use reasonable endeavors to provide Maintenance Services in accordance with the following service levels:
(a) upload of new content time – 14 business days or as notified by Gachoki Studios to the Customer.
(b) changes to website design – 20 business days or as notified by Gachoki Studios to the Customer.
(c) changes to website software – 20 business days or as notified by Gachoki Studios to the Customer.

Technical Support Services – Service Levels

Gachoki Studios will use reasonable endeavors to provide the Technical Support Services in accordance with the following services levels:
(a) Critical issue resolution time – 2 business days
(b) serious issue resolution time – 7 business days
(c) moderate issue resolution time – 14 business days
(d) Minor issue resolution time – 20 business days

Services Limit
Basic maintenance plan: 3 hours/months
Advanced maintenance plan: 6 hours/month

15. Changes to Terms and Conditions

We may update our Terms and Conditions from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately, after they are posted on this page.

Please read these Website templates terms of use carefully, as they set out our and your legal rights and obligations in relation to our web design and development services.

You should print a copy of these Terms for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our Website in future.

These Terms are available in the English language only.

If you have any questions or complaints about these Terms or our Services, please contact Gachoki Studios by email to info@gachoki.com

AGREEMENT:

1. Definitions and Interpretation

1.1. In this Agreement:
“Acceptance Criteria” has the meaning given to it in Clause [5.2];
“Acceptance Period” means the period of 5 Business Days beginning on the date of actual delivery of the Website to the Customer;
“Affiliate” means an entity that Controls is Controlled by, or is under common Control with the relevant entity;
“Agreement” means this agreement and any amendments to it from time to time;
“Business Day” means any weekday, other than Saturday or Sunday or a bank or public holiday in Kenya;
“Business Hours” means between 08:00 and 17:00 (Kenyan time) on a Business Day;
“Fees” means the amounts payable by the Customer to Gachoki Studios under or in relation to this Agreement;
“Confidential Information” means:

  1. a) any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
    b) the terms (but not the existence) of this Agreement;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer Works” means the works and materials provided to Gachoki Studios by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;
“Defect” means a defect, error, or bug having a material adverse effect on the appearance, operation, or functionality of the Website but excluding any defect, error, or bug caused by or arising as a result of:
a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, or sub-contractors;
b) an incompatibility between the Website and any other application, program, or software (other than the Customer Works and the Third Party Works).
“Delivery Date” means the date for delivery of the Website;
“Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works, and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
a) the Customer Works; and
b) the Third Party Works;
“Effective Date” means the date payment is made for a website template;
“Force Majeure Event” means an event or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Services” has the meaning given to it in Clause [3.1];
“Software Elements” means the Website excluding:
a) the Design Elements;
b) the Customer Works; and
c) the Third Party Works;
“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
“Term” means the term of this Agreement;
“Unlawful Content” has the meaning given to it in Clause [7.1];
“Website” means the website or web application to be developed by Gachoki Studios for the Customer under this Agreement; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilized in this Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.

2. Term

This Agreement will come into force on the Effective Date and will continue in force until the acceptance of the Website by the Customer in accordance with Clause [5], upon which it will terminate automatically unless terminated earlier in accordance with Clause [14].

3. The Services

3.1 Gachoki Studios will:
a) Design and deliver the Website;
b) Host the Website on a third-party server if applicable
c) incorporate the Customer Works and Third Party Works into the Website;
d) keep the Customer informed of the progress of the Website’s development; and
provide the Customer with reasonable access to the Website during the Term;
provide the Customer, after the Term with reasonable access to the Website content by means of a content management system.
try to provide the Customer with the business e-mail address of choice based on the domain name used by the Website.
(the “Services”).
3.2 Gachoki Studios will use all reasonable endeavors to perform the Services in accordance with the timetable set out in accordance with the Customer; however, Gachoki Studios does not guarantee that that timetable will be met.

4. Customer Obligations

4.1 The Customer will provide Gachoki Studios with:
a) such co-operation as is required by Gachoki Studios (acting reasonably) to enable the performance by Gachoki Studios of its obligations under this Agreement; and
b) all information and documents required by Gachoki Studios (acting reasonably) in connection with the provision of the Services.

4.2 The Customer will be responsible for procuring any third-party co-operation reasonably required by Gachoki Studios to enable Gachoki Studios to fulfill its obligations under this Agreement. 

5. Delivery and Acceptance

5.1 Gachoki Studios will use all reasonable endeavors to deliver the Website to the Customer for acceptance testing on or before the Delivery Date.
5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
a) whether the Website conforms in all material respects with the agreed specification of the Website; and
b) whether the Website has any Defects;
(the “Acceptance Criteria”).
5.3 If the Website meets the Acceptance Criteria, the Customer will send to Gachoki Studios a written notice during the Acceptance Period confirming acceptance of the Website.
5.4 If the Website does not meet the Acceptance Criteria:
a) The Customer will send to Gachoki Studios a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria; and
b) Gachoki Studios will have a further remedial period to modify the Website so that it meets the Acceptance Criteria.
5.5 The Website will be deemed to have been accepted by the Customer if:
a) the Customer does not give any notice to Gachoki Studios under either Clause [5.3] or Clause [5.4] during the Acceptance Period; or
b) the Customer publishes the Website or uses the Website for any purpose other than development and/or testing.

6. Third-Party Works

Any license fees for Third Party Works are included in the Fees (unless the parties agree otherwise).

7. Unlawful Content

7.1 The Customer will ensure that the Customer Works do not infringe any applicable laws, regulations, or third-party rights (“Unlawful Content”).

7.2 The Customer will indemnify and will keep indemnified Gachoki Studios against all damages, losses, and expenses (including legal expenses) arising as a result of any claim that the Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.

8. Fees and Payment

8.1 Gachoki Studios will issue invoices for the Fees to the Customer on the relevant invoicing dates, or (if earlier) upon the acceptance of the Website by the Customer.
8.2 The Customer will pay the Fees to Gachoki Studios within 21 days of the date of issue of an invoice issued in accordance with Clause 8.1.
8.3 VAT is applicable on all Fees stated in or in relation to this Agreement.
8.4 Fees must be paid by Paybill or by bank transfer, using such payment details as are notified by Gachoki Studios to the Customer from time to time).
8.5 If the Customer does not pay any amount properly due to Gachoki Studios under or in connection with this Agreement, Gachoki Studios may:
a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate.
b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts
c) Take down the website till full payment and interests have been settled. Gachoki Studios will not be liable for any loss, damages, or inconveniences caused by such take-down.

8.6 Once the template has been uploaded to the client’s domain, they are no longer viable for a refund.

8.7 Addition of features other than what the template has, may be subject to an additional development fee. Which will be settled before any development work commences.

9. Intellectual Property Rights

9.1 From the date of acceptance of the Website by the Customer, Gachoki Studios hereby assigns to the Customer all its Intellectual Property Rights in the Design Elements. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions, and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

9.2 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of Gachoki Studios and, from the date of acceptance of the Website by the Customer, Gachoki Studios grants to the Customer a non-exclusive worldwide license to use the Software Elements in connection with the Website, subject always to the other terms of the Agreement and the Customer may only sub-license the rights licensed under this Clause for the limited purposes, and subject to the express restrictions, specified in this Clause.

9.3 The Third Party Works will be either (at the option of Gachoki Studios):
a) supplied in accordance with the relevant licensor’s standard terms for online use;
9.4 Notwithstanding any other provision of the Agreement, the assignments and licenses granted by Gachoki Studios under this Agreement are subject to the payment by the Customer of all amounts owing to Gachoki Studios under this Agreement in full and on time.

In the event that the Customer owes any amount to Gachoki Studios under this Agreement and fails to pay that amount to Gachoki Studios within 14 days of receiving a notice:
a) requiring it to do so; and
b) specifying that the assignments will revert and the licenses will terminate if the amount repays unpaid, then Gachoki Studios may immediately revert the assignments and terminate the licenses granted by Gachoki Studios under this Agreement by giving written notice of reversion and termination to the Customer
9.5 Without prejudice to Clause [9.7], Gachoki Studios waives (and will use reasonable endeavors to seek to ensure that its employees and subcontractors waive) any moral rights they may have in the Website arising, so far as is legally possible, any broadly equivalent rights anywhere in the world.
9.6 Gachoki Studios may include the statement “Designed by Gachoki Studios” together with a link to Gachoki Studios’s website on each page of the Website in a position and in a form to be agreed upon by the parties.
9.7 Should the Website be provided with a content management system, Gachoki Studios may also include a statement together with a link to the CMS provider’s website on each page of the Website in a position and in a form to be agreed by the parties
9.8 The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will only remove any such credit and link from the Website at Gachoki Studios’s request.

10. Warranties

10.1 The Customer warrants to Gachoki Studios that it has the legal right and authority to enter into and perform its obligations under this Agreement.
10.2 Gachoki Studios warrants to the Customer:
a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
b) that it will perform its obligations under this Agreement with reasonable care and skill;
c) that the use of the Website (excluding the Customer Works) by the Customer in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party; and
d) that the Website will continue to operate without any Defects for a period of 12 months from the date of acceptance of the Website (and if the Website does not so operate, Gachoki Studios will, for no additional charge, carry out any work necessary in order to ensure that the Website operates without any Defects during this period).
10.3 The Customer acknowledges that Gachoki Studios has designed the Website to work with web browser technology.
10.4 The Customer further acknowledges that Gachoki Studios does not purport to provide any legal advice under this Agreement or in relation to the Website and Gachoki Studios does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
10.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied in this Agreement or any related contract.

11. Liability

11.1 Nothing in this Agreement will exclude or limit the liability of either party for:
a) death or personal injury caused by that party’s negligence;
b) fraud or fraudulent misrepresentation on the part of that party; or
c) any other liability which may not be excluded or limited under applicable law.

11.2 Subject to Clause [11.1], each party’s liability to the other party under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
a) Neither party will be liable for any:
(i) loss of profits, income, or anticipated savings,
(ii) loss or corruption of any data, database, or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special, or consequential loss or damage;

  1. b) neither party will be liable for any losses arising out of a Force Majeure Event; and
    c) Each party’s liability in relation to any event or series of related events will in no circumstances exceed Ksh 10,000.

12. Data Protection

12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Gachoki Studios under this Agreement.
12.2 Gachoki Studios warrants that:
a) It will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Gachoki Studios on behalf of the Customer; and
b) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by Gachoki Studios on behalf of the Customer.

13. Confidentiality and Publicity

13.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause [13]. (For the purposes of this Clause [13], the terms of this Agreement constitute the Confidential Information of each party.)
13.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
13.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
13.4 These obligations of confidentiality will not apply to Confidential Information that:
a) has been published or is known to the public (other than as a result of a breach of this Agreement);
b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body, or a stock exchange.
13.5 Neither party will make any public disclosure relating to the subject matter of this Agreement (including press releases, public announcements, and marketing materials) without the prior written consent of the other party, not to be unreasonably withheld or delayed.

14. Termination

14.1 Either party may terminate this Agreement at any time by giving at least 30 days written notice to the other party.
14.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
14.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
b) An administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party;
c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement); or
d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

15. Effects of Termination

15.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.13.
15.2 Termination of this Agreement will not affect either party’s accrued rights (including Gachoki Studios’s accrued rights invoice for and to be paid the Fees) as of the date of termination.
15.3 If this Agreement is terminated by the Customer under Clause 14.2 or 14.3 (but not in any other case):
a) Gachoki Studios will provide the Customer an electronic copy of the Website within 30 days;
b) Gachoki Studios will provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Website to the Customer or another service provider, subject to payment of Gachoki Studios’s reasonable expenses; and
c) The Customer will be entitled to a refund of any Fees paid by the Customer to Gachoki Studios in respect of any Services which were to be performed after the date of effective termination and will be released from any obligation to pay such Fees to Gachoki Studios (such amount to be calculated by Gachoki Studios using the statement of work document).
15.4 Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Fees on termination, and will not be released from any obligation to pay Fees to Gachoki Studios.

16. General

16.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by registered post, or email, for the attention of the relevant person, and to the relevant address or email address.
16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours when Business Hours next begin after the relevant time set out below):
a) where the notice is delivered personally, at the time of delivery;
b) where the notice is sent by registered post, 48 hours after posting; and
c) where the notice was sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
16.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.5 Nothing in this Agreement will constitute a partnership, agency relationship, or contract of employment between the parties.
16.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.7 Each party may freely assign its rights and obligations under this Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
16.8 Gachoki Studios may subcontract any of its obligations under this Agreement to any third party.
16.9 Neither party will, without the other party’s prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ, or otherwise solicit for employment any employee or contractor of the other party who has been involved in the performance of this Agreement.
16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which is necessary to enable the parties to exercise their rights and fulfill their obligations under this Agreement.
16.11 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
16.12 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements, and understandings between the parties relating to the subject matter of this Agreement. Subject to Clause [11.1], each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
16.13 This Agreement will be governed by and construed in accordance with the laws of the Republic of Kenya, and the courts of the Republic of Kenya will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

16.14 The Client accepts the template as is and that only images, color, and text will be replaced to suit their purpose.

17. Changes to Terms and Conditions

We may update our Terms and Conditions from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately after they are posted on this page.

1. Definitions and Interpretation

1.1 In these Terms:
“Additional Fees” means additional Fees calculated in accordance with the provisions of the Schedule and payable by the Customer to Gachoki Studios in accordance with Clause [3.5];
Affiliate” means a company, firm, or individual that Controls is Controlled by, or is under common Control with the relevant company, firm or individual;
“Agreement” means these Terms and any amendments to it from time to time;
“Business Day” means any weekday, other than Saturday or Sunday or a bank or public holiday in Kenya;
“Business Hours” means between 08:00 and 17:00 Kenyan time on a Business Day;
“Gachoki Studios” means Gachoki Studios, which has its principal place of business at Bruce House 4th floor, Nairobi, Kenya.
“Gachoki Studios Materials” means all works and materials (including text, images, video material, audio material, software, scripts, mark-ups, style sheets, and databases) created by Gachoki Studios and incorporated by Gachoki Studios into the Website pursuant to these Terms;
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the customer for Services under these Terms.
“Effective Date” means the date of execution of these Terms as specified in the Service quote signed by the Customer;
“Fees” means the Monthly Fees and the Additional Fees;
“Force Majeure Event” means an event or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, [failures of any third party internet service provider,] hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Helpdesk Services” means the Services described in Clause [3.1];
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the Services described in Clause [3.2];
“Minimum Term” means the period of 1 Year starting on the Effective Date;
“Monthly Fees” means the amount specified as such in the Schedule, which will be paid by the Customer to Gachoki Studios in respect of each calendar month of Services in accordance with Clause [6];
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedule” means the schedule attached to these Terms;
“Services” means the Helpdesk Services, the Maintenance Services, and the Technical Support Services as detailed in Clause [3];
“Services Limit” means the limit to the provision of [Maintenance Services and Technical Support Services] specified in the Schedule;
“Technical Support Services” means the Services described in Clause [3.3];
“Term” means the term of this Agreement;
“Website” means the Customer’s website; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilized in this Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.

2. Term

This Agreement will come into force on the Effective Date and will continue in force for one year or the entire period Gachoki Studios provides online marketing services to the client, upon which it will terminate automatically unless terminated earlier in accordance with Clause [12]. 2.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5, 6.5, 8, 10, 13 and 14.3 to 14.12].

3. Services

3.1 Gachoki Studios will make available, during Business Hours, a telephone/email helpdesk facility to enable the Customer to contact Gachoki Studios in relation to requests for Online Marketing Services. Gachoki Studios will use reasonable endeavors to respond to requests for support made through the helpdesk.
3.2 Subject to Clause [3.4], upon the request of the Customer through the helpdesk, Gachoki Studios will provide the following Online Marketing Services to the Customer during the Term in relation to the Website in accordance with the services levels specified in the Schedule:
(a) Adding new content to the Website (where new content is provided by the Customer to Gachoki Studios);
(b) effecting minor changes to the design of the Website at the direction of the Customer (Gachoki Studios shall determine, acting reasonably, whether any given changes are “minor”); and
(c) effecting minor changes to the software and/or database comprised in the Website at the direction of the Customer (Gachoki Studios shall determine, acting reasonably, whether any given changes are “minor”).
3.3 Subject to Clause [3.4], Gachoki Studios will use reasonable endeavors to attempt to:
(a) answer technical queries relating to the Website; and
(b) resolve faults and errors in the Website (excluding faults and errors in, or caused by: (i) any hardware, or (ii) any software or system external to the Website);
notified by the Customer through the helpdesk, in each case in accordance with the service levels specified in the Schedule.
3.4 Gachoki Studios may refuse to provide Online Marketing Services and/or Support Services to the Customer during a calendar month in excess of the Services Limit.

Where the combined total number of person-hours spent providing the Maintenance Services and Support Services during any calendar month exceeds the Services Limit, then:
(a) Gachoki Studios will inform the Customer as soon as reasonably practicable that the Services Limit will be or has been exceeded;
(b) Gachoki Studios will inform the Customer as soon as reasonably practicable of the applicable Additional Fees to complete the requested Maintenance or Technical Support service;
(c) Should the Customer agree to the applicable Additional Fees, Gachoki Studios will carry out the requested Maintenance or Technical Support service and the Customer will pay to Gachoki Studios the applicable Additional Fees.
3.5 Where the Customer does not utilize Maintenance Services and Support Services up to the Support Limit during a calendar month, then the unused Services capacity will be carried over to the next period and so until the end of the Minimum Term where it will be permanently lost to the Customer.

4. Customer Responsibilities

4.1 The Customer will provide to Gachoki Studios:
(a) the ability to access and make changes to the Website and Social Media accounts/pages; and
(d) all other co-operation, information, and documentation reasonably required by Gachoki Studios to enable or facilitate the provision of the Services.
4.2 The Customer will be responsible for procuring any third-party cooperation reasonably required for the provision of the other Services.

5. Intellectual Property Rights

Gachoki Studios hereby assigns to the Customer all Intellectual Property Rights in Gachoki Studios Materials. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions, and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

6. Fees and Payment

6.1 Gachoki Studios will issue invoices to the Customer:
(a) for the Monthly Fees, monthly; and
(b) for the Additional Fees, from time to time.
6.2 The Customer will pay the Fees to Gachoki Studios of an invoice issued in accordance with Clause [6.1].
6.3 VAT applicable to all Fees stated in or in relation to this Agreement.
6.4 Fees must be paid using such payment details as are notified by Gachoki Studios to the Customer from time to time
6.5 If the Customer does not pay any amount properly due to Gachoki Studios under or in connection with this Agreement, Gachoki Studios may:
(a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate.
6.6 Gachoki Studios may vary the Monthly Fees and/or Additional Fees by giving the Customer at least 60 days’ notice of variation.

7. Warranties

7.1 The Customer warrants to Gachoki Studios that they have the legal right and authority to enter into and perform its obligations under this Agreement.
7.2 Gachoki Studios warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that will perform its obligations under this Agreement with reasonable care and skill.
7.3 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied in this Agreement or any related contract.

8. Limitations of Liability

8.1 Nothing in this Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability that may not be excluded or limited under applicable law.
8.2 Subject to Clause [8.1], Gachoki Studios’s liability to the Customer under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Gachoki Studios will not be liable for any: (i) loss of profits, income or anticipated savings, (ii) loss or corruption of any data, database or software, (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity, or (v) indirect, special or consequential loss or damage;
(b) Neither party will be liable for any losses arising out of a Force Majeure Event; and
(c) Gachoki Studios’s liability in relation to any event or series of related events will in no circumstances exceed the greater of (i) Ksh 5,000; and (ii) the total amount paid by the Customer to Gachoki Studios under the Agreement during the 3 month period immediately preceding the event or series of events.

8.3 Gachoki Studios will not be liable for any: (i) loss of profits, income, or anticipated savings, (ii) loss or corruption of any data, database, or software, (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity, or (v) indirect, special or consequential loss or damage where adverts do not meet the Client’s objective

9. Data Protection

9.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Gachoki Studios under this Agreement and that the processing of that Personal Data by Gachoki Studios for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.
9.2 Gachoki Studios warrants that:
(a) It will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Gachoki Studios on behalf of the Customer; and
(b) It has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by Gachoki Studios on behalf of the Customer.

10. Confidentiality

10.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause [10].
10.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
10.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
10.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body, or stock exchange.

11. Force Majeure Events

11.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

12. Termination

12.1 Either party may terminate this Agreement at any time by giving at least 30 days written notice to the other party.
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of this Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement.
12.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

13. Effects of Termination

13.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5, 6.5, 8, 10, 13 and 14.3 to 14.12].
13.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as of the date of termination.
13.3 If this Agreement is terminated by the Customer under Clause [12.2] but not in any other case, the Customer will be entitled to a refund of any Fees paid by the Customer to Gachoki Studios in respect of any Services which were to be performed after the date of effective termination and will be released from any obligation to pay such Fees to Gachoki Studios (such amount to be calculated by Gachoki Studios using any reasonable methodology).
13.4 Save as provided in Clause [13.3], the Customer will not be entitled to any refund of Fees on termination, and will not be released from any obligation to pay Fees to Gachoki Studios.

14. General

14.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by registered post, or sent by email, for the attention of the relevant person (or as notified by one party to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by registered post, 72 hours after posting; and
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
14.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in this Agreement will constitute a partnership, agency relationship, or contract of employment between the parties.
14.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
14.7 Gachoki Studios may freely assign its rights and obligations under this Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
14.8 Gachoki Studios may subcontract any of its obligations under this Agreement to any third party.
14.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which is necessary to enable the parties to exercise their rights and fulfill their obligations under this Agreement.
14.10 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
14.11 Subject to Clause [8.1]:
(a) This Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements, and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and
(c) Neither party will have any liability other than pursuant to the express terms of this Agreement.
14.12 This Agreement will be governed by and construed in accordance with the laws of England and Wales, and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

The Schedule

Maintenance Services – Service Levels

Gachoki Studios will use reasonable endeavors to provide Maintenance Services in accordance with the following service levels:
(a) upload of new content time – 14 business days or as notified by Gachoki Studios to the Customer.
(b) changes to website design – 20 business days or as notified by Gachoki Studios to the Customer.
(c) changes to website software – 20 business days or as notified by Gachoki Studios to the Customer.

Technical Support Services – service levels

Gachoki Studios will use reasonable endeavors to provide the Technical Support Services in accordance with the following services levels:
(a) Critical issue resolution time – 2 business days
(b) serious issue resolution time – 7 business days
(c) moderate issue resolution time – 14 business days
(d) Minor issue resolution time – 20 business days

Services Limit
Basic maintenance plan: 3 hours/months
Advanced maintenance plan: 6 hours/month

15. Changes to Terms and Conditions

We may update our Terms and Conditions from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately after they are posted on this page.

Welcome to shop.gachoki.com. These terms and conditions outline the rules and regulations for the use of our website and the purchase of our products.

By accessing this website we assume you accept these terms and conditions in full. Do not continue to use shop.gachoki.com if you do not accept all of the terms and conditions stated on this page.

1. Definitions

  • “Us”, “We”, “Our” refers to shop.gachoki.com and its owner.
  • “You”, “Your” refers to the user or customer accessing or purchasing products from our website.
  • “Products” refers to motion capture data, Blender addons, animation project files, and any other digital assets available for sale on our website.

2. Product Use

  • The products available on shop.gachoki.com are intended for personal and commercial use by animators, visual effects artists, and other creative professionals.
  • You are authorized to use the purchased products in accordance with the license agreement provided with each product.
  • Redistribution, resale, or sharing of purchased products without proper authorization is strictly prohibited.

3. Purchases

  • All purchases made on shop.gachoki.com are final and non-refundable.
  • Once a purchase is completed and the product is delivered, no refunds or exchanges will be provided unless otherwise specified or required by law.

4. License Agreement

  • Each product available on shop.gachoki.com is accompanied by a license agreement outlining the permitted uses and restrictions of the product.
  • By purchasing a product, you agree to abide by the terms of the license agreement provided with that product.

5. Intellectual Property

  • All products available on shop.gachoki.com are protected by copyright and other intellectual property laws.
  • You may not copy, modify, or distribute any products purchased from our website without explicit permission from us.

6. Disclaimer of Warranties

  • We make no warranties, express or implied, regarding the accuracy, reliability, or completeness of the products available on our website.
  • We disclaim any liability for any damages or losses resulting from the use of our products.

7. Limitation of Liability

  • In no event shall we be liable for any direct, indirect, special, consequential, or incidental damages arising out of the use or inability to use our products.

8. Governing Law

  • These terms and conditions shall be governed by and construed in accordance with the laws of [Your Country], without regard to its conflict of law provisions.

9. Changes to Terms and Conditions

  • We reserve the right to modify these terms and conditions at any time without prior notice. Changes will be effective immediately upon posting on this page.

10. Contact Us

If you have any questions about these terms and conditions, please contact us at info@gachoki.com