AGREEMENT TO BE BOUND BY THESE TERMS & CONDITIONS:
By using Proficient Information and Communications Technology Limited’s (Proficient ICT’s) services and signing up as a Client for any job, task or project, you, the Client, agree to be legally bound by these Terms & Conditions.
Please, read these terms carefully. By using the products and/or services of Proficient ICT you agree to abide by these Terms & Conditions.
These T&C and any additional Terms of Sale (T.O.S.) or contract specific to a project, service, special offer or promotion set out the entire agreement between Proficient ICT and the Client.
DESCRIPTION & DEFINITIONS
Proficient ICT :
In these terms and conditions, Proficient Information and Communications Technology Limited, the Proficient ICT service, all services related to it, and all text, images photographs, user interface, “look and feel”, data and other content included in it from time to time (including, without limitation, the selection, coordination and arrangement of such content) are referred to as “Proficient ICT”, “www.proficientict.com”, “us”, “we”, “website” or “service”.
“Client” is defined as representing one business (company or entity) or person (sole trader). Client may also be referred to as “himself/herself” or “his/her” or “their” or “site owner” in this document. Client may also be referred to as the staff member, employee, agent or third party on behalf the Client.
Proficient ICT provides the client various services including, but not limited to:
• Template Website Design and Development
• Ecommerce Development and Consulting
• Custom Website Design and Development
• Web and Internet Consulting
• Website Maintenance and Security
• Website and Email Hosting Service
• SEO – Search Engine Optimisation Service
• Digital Marketing Service
• Google AdWords / Online Advertising Service
• Social Media Service
• Online PR Service
• Email Marketing Service
For each project or job, Proficient ICT follows a production process that is divided into stages. For each stage, specific deliverables are produced for the client which will be specified in a project brief or a job quote where applicable. A task, job or project will be considered complete where either the Client approves the task, job or project as being completed or where Proficient ICT determines that the task, job or project is complete according to the project scope or the task / job definition and parameters as set out in a verbal or written agreement.
Proficient ICT may provide the Client with domain name registration, web and email hosting services, custom website design, website design, digital marketing services and consulting services and so on in accordance with the product and/or service the client has requested.
A project scope defines and sets out what work or service or item or feature is to be included and / or completed for the project in question. The descriptions and definitions and parameters in a project scope are intended to be clear to Proficient ICT and the Client as well as to any third party to judge and finalise the interpretation of any part of a project scope and the relevant task, job or project.
A Quotation is an approximation of the hours or fees required to complete or deliver a task, job or project. Any final invoice or fee for the work approved by a Client based on an estimate will usually be close or similar to the estimated figure excluding variations to the project or changes in the scope. However, a quotation is not a fixed price and should not be viewed by a Client as such. An estimate is a guide to the final price only.
Proficient ICT will sometimes use a quotation during the early stages of project discussions or for ad-hoc works where Client and Proficient ICT have together approved this billing / engagement model.
Proficient ICT will usually follow up an estimate by providing a retainer invoice of invoice where the Client has given a general approval for the estimated fee or cost.
Retainer invoices / invoices:
A retainer invoice or invoice is a specific fee or price that we set down for the requested task, job or project. It will include parameters and defined deliverables. A retainer invoice or invoice will not vary as it is fixed. Any variations to the retainer invoice or invoice or requirements requested by the client will be quoted separately with a set fee or price for that job or project or task.
FORMS AND RESPONSES
Proficient ICT provides an online client portal for Clients to use to contact Proficient ICT for an inquiry, a call back or a change request. If requested, Proficient ICT may issue a Proposal with an Estimate or invoice in respect of any deliverable proposed to be provided under these Terms & Conditions. Proficient ICT may decide, in its sole discretion, to deny a quotation request or information inquiry.
PROPOSALS, ESTIMATES AND QUOTES:
In response to a request for service or a specific product or service request, Proficient ICT may produce a proposal that will remain valid and open for acceptance by the Client for up to 30 days, unless otherwise agreed by Proficient ICT, from the date of issue that may include any of the following:
Creative Brief / Proposal
Job / Task Definition
Description and Features
Fees and Charges
Any other specifics or TOS related to the product, service or special offer.
Proficient ICT reserves the right to withdraw a proposal or quote at any time.
By approving any estimate or project contract, verbally o Proficient ICT Proficient ICT the agreed fees set out in the quote or project contract when Proficient ICT requests payment or as otherwise set out in the quote or the project contract.
INVOICES, SUSPENSION AND TERMINATION
All pricing is given in Kenyan Shillings.
Proficient ICT’s invoices are due on the date of issue and are payable upon receipt by the Client unless otherwise agreed to in writing.
Any outstanding invoices for work completed or services provided to the Client by Proficient ICT requires payment in full due on receipt of the invoice unless otherwise agreed to writing between the parties. On completion of a task, job or project the client is obliged to pay the balance of the invoice in full.
Fees Due in Advance for Service
Some services including, but not limited to, hosting and support fees and search engine opimisation fees are due in advance for the applicable period as noted in the invoice. Such fees and the related invoice must be paid in full prior to the commencement of the applicable service period be that one month, one year, or 24 months.
Quote, Job or Project Completion
Once a Client approves the job or task to “go live” or where Proficient ICT defines the job or task as being “completed”, an invoice will be issued to the Client with payment on that invoice due immediately unless otherwise agreed to in writing between the parties.
Any warranty work that Proficient ICT will carry out to fix / correct any bugs or faults in the website or system as reported by the Client or as found by Proficient ICT that may be covered by warranty or by the scope of the task, job or project will be completed as soon as reasonably possible by Proficient ICT.
A revision, where allowed and applicable, to the design or function of the website or system that may be included in the scope of the task, job or project will be completed as soon as possible by Proficient ICT.
Proficient ICT reserves the right to postpone or delay or refuse warranty fix work or revisions or enhancements to a website or system for the Client if the Client has overdue outstanding invoices for any job, task or project.
Project Contract Payment Milestones
For each project contract, there are payment milestones that will occur at various stages or points during the timeline of project. For each payment milestone, a fee is due as set out per contract which will be invoiced at the time of the payment milestone being reached with payment by the Client on that invoice due immediately unless otherwise agreed to in writing between the parties.
If the client defaults on their payment or otherwise fails to pay their account with Proficient ICT as per the terms under this agreement, Proficient ICT reserves the right to suspend services and to apply administrative fees of Ksh. 3,000 per hour, plus any other costs that may have been incurred, to reactivate the services.
Hosting fees, SEO (Search Engine Optimisation) fees, Digital Marketing service fees and all service fees charged, unless otherwise specified, are non-refundable for the term / service / product paid for by the Client.
If the client chooses to discontinue the services supplied by Proficient ICT and the Client has paid all monies owed to Proficient ICT, Proficient ICT will help the client to transfer their Domain Name to another provider/agent if requested to do so by the Client. Charges to the Client may apply if the work required or requested to complete the transfer falls within 5 years or the project launch date as specified by EWD.
Proficient ICT may opt to discontinue services if an amount payable to Proficient ICT is overdue or to take down a website permanently in any case where an amount payable is overdue by more than 30 days. In any such event, the client remains liable for the total cost of the contract including all disbursements; unless otherwise agreed in writing between Proficient ICT and the client.
Proficient ICT may terminate any agreement immediately if the client breaches any of these Terms & Conditions, or if he/she is a company going into insolvent liquidation, or if the client is a person he/she is declared bankrupt.
Ownership of the product remains with Proficient ICT until payment in full is made to Proficient ICT by the client.
Proficient ICT reserves the right to discontinue services and terminate the Client at the sole discretion of Proficient ICT where Proficient ICT provides the Client notice in writing of said termination.
Upon default by the Client in regard to any obligation under their agreement with Proficient ICT and where the Client fails to rectify the default after notification by Proficient ICT, the Client authorises Proficient ICT to notify any debt collection agency of the default and charge said debt collection agency with collecting the outstanding debt owed to Proficient ICT by the Client.
Should this occur then at Proficient ICT’s sole discretion it may terminate the contract and/or service being provided to the Client at which time the full outstanding balance for the remainder of the minimum term in the relevant agreement or payments shall be due in full.
MONTHLY PACKAGE WEBSITES – DEFINITIONS:
Monthly Package Website: A website owned by Proficient ICT that is leased to a client. A monthly package website is owned, controlled and serviced by Proficient ICT.
Payout Options: Pay out prices will vary depending on the website type chosen and the period of time the website has been live from official launch of the completed site.
Rental Period Minimum Term: All rental plans are a minimum of 12 months. There is no maximum time period on your plan, you can rent your website for as long as you like and pay it out anytime.
MONTHLY PACKAGE WEBSITE – TERMS AND CONDITIONS:
Monthly Package Website – Ownership of a Monthly Package Website:
The control and code of all Monthly Package Websites remains the property of Proficient ICT throughout the rental period until such a time as when the website is purchased by the client at which point the ownership of the website and the code is transferred to the client.
This control includes cPanel, hosting admin, MySQL or FTP access which Proficient ICT does not provide to clients under any circumstances.
Monthly Package Website – Ownership of Website Content:
The ownership and copyright of the website content including all text, images, multimedia as supplied by the client remains with the client at all times unless otherwise bound by these Terms and Conditions or unless otherwise agreed.
Monthly Package Website – Rental Plan Expiration and Termination Options:
At the end of the minimum term rental plan (24 months from launch), the client can choose to continue to rent the website on a month to month term with no further fixed terms by continuing to pay the pre-existing monthly rental fee.
Or, the client can choose to cancel the rental plan upon completion of the defined rental period minimum term and terminate the website and the associated hosting by providing 90 days written notice to Proficient ICT requesting said termination.
Or, the client can choose to purchase the Monthly Package Website outright and take full ownership and control of it.
Monthly Package Website – Purchasing a Monthly Package Website (Template / E-commerce / Custom):
A Monthly Package Website can be purchased after the minimum rental plan has been completed and/or paid in full. The rental plan can be paid out in advance bringing the rental plan to a close and making the website available for purchase. The purchase price of a Monthly Package Website is defined by the monthly fee over a 60 month period, less the following discounts:
First 24 months = 60 month total, less amount paid to date
3rd Year = 60 month total, less amount paid to date less 10%
4th Year to 5th Year = 60 month total less amount paid to date, less 15%
After 5 years rental, the purchase price will be zero dollars and will be owned by the client at no additional cost excluding hosting and support fees.
A Website has been rented for 3 years (at Ksh. 7,500p/m) and the client wants to purchase it:
Original website price = Ksh. 450,000
– Yr 1 (after 12 months) = Ksh. 360,000 (to purchase this site outright)
– Yr 2 (after 24 months) = Ksh. 270,000 (to purchase this site outright)
– Yr 3 (after 3 years rent) = Ksh. 162,000 (to purchase this site outright)
Proficient ICT is the copyright owner of all works created or developed by Proficient ICT for a client unless otherwise agreed to in writing. When payment for the product or service is made in full by the client for the product or service, the client is licensed to use the product or service for its intended use within the context of their business and the product itself.
Proficient ICT claims no intellectual property rights to works created by any third party designers or developers that may be used from time to time, such rights remain with the relevant third party.
As a creator of copyright material, Proficient ICT has the following rights:
To be attributed when its work is used;
Not to have its work falsely attributed to someone else, nor to have the altered work attributed as if it were unaltered; and not to have the work treated in a manner that would prejudice Proficient ICT’s honor or reputation.
INTERNATIONAL LICENSING REQUIREMENTS
Proficient ICT may display its own copyright and intellectual property notices on any websites that Proficient ICT develops and the client (or any third parties related to or engaged by the client) must not remove, obscure, deface or alter such copyright and intellectual property notices except by agreement in writing with Proficient ICT.
The client agrees that in the provision of web design services by Proficient ICT we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and data, provided to us by you.
In the event any material necessary for the production of the project must be passed on to a third party, Proficient ICT will incur no liability for losses incurred in transit, or due to the delay of the shipper of the third party.
Proficient ICT may accept to maintain and secure a website that is not hosted by Proficient ICT’s third party. In that case, the client will refer to Proficient ICT fees and charges for the requested services.
AGREEMENT NON EXCLUSIVITY
The client acknowledges that Proficient ICT is providing services to the client on a non-exclusive basis and that Proficient ICT may provide services and products of the same or a similar nature to any other party (provided that in doing so it does not breach privacy).
Proficient ICT shall be free to reproduce, use, disclose display exhibit, transmit, perform, create derivative works, and distribute any items unless specifically agreed otherwise. Further, Proficient ICT shall be free to use any ideas concepts know-how or techniques acquired in construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
Proficient ICT retains the right to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, marketing materials, and portfolio. Where applicable the client will be given any necessary credit for usage of the project elements.
WARRANTIES & LIABILITIES
Proficient ICT provides a limited warranty for websites and systems that are developed and designed by Proficient ICT. This warranty is valid for up to 90 days from the date of launch of the website or system or from the date that Proficient ICT determines that the website or system is ready to launch unless otherwise agreed to in writing between the parties. This limited warranty applies to works performed by Proficient ICT that are “in scope” for a project scope and contracted project or that are clearly specified in the applicable written quote.
Where applicable for any bug or problem or fault with the noted or reported function or element that is covered by this limited warranty where the function or element is deemed to be “not working” when assessed by Proficient ICT against the project scope or the written quote specifications, Proficient ICT will “fix” the bug or problem or fault in the website or system at no cost to the Client where Proficient ICT determines that the bug or problem or fault is because of recently completed works performed improperly or incompletely by Proficient ICT during the execution of the works in question.
This warranty is voided if the Client or a third party acting on behalf of the Client is issued with FTP or Shell or MySQL or similar access to the website / system hosting or the relevant hosting control panel by Proficient ICT.
This warranty may be voided if a Client or a third party acting on behalf of the Client installs any extensions or plugins or additional software into the website or system without the express written permission and approval of Proficient ICT.
This warranty does not include any issues or faults or incompatibilities that are caused by third party software, systems, extensions, plugins or similar.
Proficient ICT will ensure that any site or application will function correctly at the time of the website development and going “live” when viewed with the current versions of the following internet browsers; Microsoft Edge Browser, Mozilla Firefox, Google Chrome and Apple Safari, unless otherwise agreed in writing.
Any warranty or guarantee provided by Proficient ICT for a website is conditional upon the website being hosted by Proficient ICT on hosting servers run and operated by Proficient ICT that have restricted access to the hosting server and/or the hosting control panel for the hosting server.
Any warranty or guarantee provided by Proficient ICT for a website is rendered null and void if the client or any other third party accesses the website or the relevant website server via an FTP connection or hosting control panel.
Proficient ICT can offer no guarantee of correct function with all browser software in future releases of any internet browser. However, Proficient ICT will offer and provide a competitive quote for services to modify the website (where possible) to cause the site to correctly function and/or correctly render in the changed version of an internet browser.
Where any Client or agent or party acting for or on behalf of the Client acts on or in the website or system that causes disruption or error to the website or system, Proficient ICT is not liable and the Client will be liable for any and all costs associated or incurred with fixing the error or disruption.
Search engine optimisation services
Whilst Proficient ICT will try to improve the position of the client’s Website in the Search Engine results in response to a search request, we do not warrant that this effort will be successful nor can Proficient ICT warrant the time that the position a search engine will be held.
Proficient ICT cannot be held responsible for any changes to the position of the client’s Website in the Search Engines results pursuant to the provision of search engine optimisation services by Proficient ICT.
Copyright and Intellectual Property
Proficient ICT is not responsible for the contents and data of any Web Site we design for the client, and upon publication the client must satisfy themselves that the website will comply with all applicable laws, and codes of practice governing the use of websites and related services. This includes the intellectual property and copyright ownership of all material that the client has provided to us.
Proficient ICT is similarly not responsible for the client’s subsequent use of the site and compliance of various Commonwealth and state legislations.
Proficient ICT is not responsible for the client’s choice of domain name and the legal consequences that the domain name use could occur relating to the Trademark and Competition or the The Republic of Kenya’s governing laws.
Client’s Third Party
Proficient ICT is solely not responsible for the performance of the product or service if the client installs or orders another third party to install anything such as software that would alter or damage the website and its functionality. Furthermore, the client may be liable for charges or fees incurred by Proficient ICT for the repair of any product or service if the client or their third party installs any unapproved software into the product or service supplied by Proficient ICT
Data and Proofing
Proficient ICT shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client.
Proficient ICT is not responsible or held liable for any errors contained in the final product after the final product, this remains the final responsibility of the client.
Proficient ICT cannot take responsibility for any copyright or privacy infringements caused by materials submitted by the client and reserves the right to refuse use of any such material unless proof of permission is provided if requested.
Proficient ICT shall use reasonable endeavours to provide continuing availability of the hosting server and the services but Proficient ICT shall not, in any event, be liable for service interruptions or down time of the server.
Proficient ICT operates and provides hosting servers that are delivered as a managed service which are ordinarily restricted from client access or third party access.
Proficient ICT does not ordinarily provide clients or third parties with access to the hosting servers in any of the following methods or means; FTP, CPanel, WHM, Shell or via any other similar means or method. That if a client formally requests and is provided access to their hosting server by Proficient ICT, upon receipt of said request, via FTP or any hosting control panel, this will void any warranty or guarantee including the 1st Level Support provided by Proficient ICT.
Proficient ICT will not be liable for any costs incurred, compensation for loss of earnings due to the unavailability of the site, servers, software or any material provided by its agents.
Hosting- 1st Level Support
All CMS or ecommerce websites hosted by Proficient ICT include up to 4 hours per calendar month of 1st level support which includes standard tasks on the hosting control panel such as setting up email accounts or domain name parking. It also includes general support for standard tasks and functions in the CMS or ecommerce system.
If the 4 hours of support is not used in any given month, the included hours expires at the end of the month and does not roll over to the subsequent month.
Custom hosting plans do not include additional hours of 1st level support unless otherwise agreed to in writing.
Any excess 1st level support provided in a given calendar month will be charged at the standard hourly rate applicable.
1st Level Support is rendered null and void if the client accesses the hosting server using FTP or the hosting control panel.
In no event will Proficient ICT be liable to any party including the client for any indirect, punitive, special, incidental or consequential damage or loss, financial or otherwise, in connection with or arising out of these Terms (including for loss of profits, use, data, or economic advantage), regardless of how it arises. The client will indemnify Proficient ICT from and against any claim by any party claiming any such damage against Proficient ICT.
Proficient ICT will not be liable for any costs incurred or compensation for loss of earnings due to the unavailability of the site, servers, software or any material provided by Proficient ICT or its agents / third party partners.
Proficient ICT will ensure that any website or application will function correctly on the server to which it is initially installed.
Proficient ICT can offer no guarantee of correct function with all browser software including future releases.
Proficient ICT may from time to time and without notice or liability to the client suspend any of the services if the reason for doing same is an event beyond the reasonable control of Proficient ICT.
Proficient ICT will not be liable or become involved in any disputes between the site owner and their clients and Proficient ICT cannot be held responsible for any wrongdoing on the part of a site owner.
These terms and conditions and any agreement entered into by Proficient ICT or service provided by Proficient ICT that arises in a dispute or legal matter shall be governed by and interpreted in accordance with the law for the time being enforced in the Republic of Kenya, and each party submits to the jurisdiction of the Republic of Kenya.