Terms & Conditions

Mkenya Vibrant – Terms and Conditions

Introduction

These Terms and Conditions ("Terms") govern the provision of services by Mkenya Vibrant ("we," "us," "our") to any client or customer ("you," "your"). By engaging our services, accessing our website, CRM portal, or using any services provided by Mkenya Vibrant, you agree to be bound by these Terms. If you do not accept these Terms, you are prohibited from using our services. We reserve the right to modify or update these Terms at any time without prior notice. Your continued use of our services after changes are made constitutes acceptance of the revised Terms.

1. General Terms

1.1 Confidentiality of Communications

All communications, including emails from Mkenya Vibrant, are confidential and intended solely for the recipient. Any unauthorized disclosure, copying, or distribution is prohibited. If you receive an email in error, please notify the sender immediately and delete the communication. Mkenya Vibrant assumes no liability for any loss or damage arising from unauthorized use or reliance on the contents of the communication.

1.2 Amendments to Terms

We reserve the right to modify these Terms at any time, and such modifications will become effective upon posting on our website. It is your responsibility to review these Terms periodically for updates. Continued use of our services after any amendments constitutes your acceptance of the updated Terms.

1.3 Indemnification

You agree to indemnify and hold Mkenya Vibrant, its directors, officers, employees, and agents harmless from any claims, losses, liabilities, costs, and expenses (including legal fees) arising out of:

  1. Your breach of these Terms.
  2. Your misuse of our services or website.
  3. Your violation of applicable laws, regulations, or third-party rights, including intellectual property rights.

1.4 Limitation of Liability

Mkenya Vibrant shall not be liable for any indirect, incidental, special, or consequential damages (including but not limited to loss of profits, data, or business) arising from your use of our services, even if we have been advised of the possibility of such damages. Our total liability for any claims arising out of or related to these Terms, whether in contract, tort, or otherwise, shall not exceed the amount paid by you for the specific service giving rise to the claim.

2. Service-Specific Terms

2.1 Photography and Videography Services

2.1.1 Bookings and Deposits
  1. All photography and videography services must be booked in advance, either through our website, CRM portal, or by signing a contract. A non-refundable deposit of 50% of the total project cost is required to secure the booking.
  2. The remaining balance is due upon completion of the project, and we reserve the right to withhold the final product until full payment is made.
  3. Failure to make the final payment within 30 days of the project’s completion will result in a late fee of KES 2,000 per week and possible legal action for recovery of the outstanding balance.
2.1.2 Cancellations and Rescheduling
  1. Cancellations made more than 7 days before the scheduled service date will result in the forfeiture of the deposit.
  2. Cancellations made less than 7 days before the service date will incur a charge of 75% of the total project cost.
  3. Rescheduling is allowed without penalty if requested 48 hours in advance, subject to availability. Rescheduling within 48 hours may incur additional charges.
  4. Mkenya Vibrant is not responsible for delays or cancellations caused by unforeseen circumstances, such as adverse weather conditions, client unavailability, or access issues at the shoot location.
2.1.3 Ownership and Copyright
  1. Mkenya Vibrant retains full ownership and copyright of all photographs, videos, and other media content created, unless otherwise specified in writing. Upon final payment, the client will be granted a non-exclusive, non-transferable license to use the media for personal or agreed commercial purposes.
  2. Clients are not permitted to alter, resell, or distribute any media without prior written consent from Mkenya Vibrant.
  3. Mkenya Vibrant reserves the right to use any media produced for promotional purposes, including portfolio displays and marketing, unless otherwise agreed with the client.
2.1.4 Revisions and Final Approval
  1. Clients are entitled to two rounds of revisions for photography and videography projects. Additional revisions will be billed at our standard hourly rate.
  2. Approval of the final product, either in writing or verbally, constitutes acceptance of the project. Any errors discovered after final approval are the responsibility of the client, and any corrections will be billed separately.

2.2 Drone Photography and Videography Services

2.2.1 Compliance with Kenyan Aviation Laws
  1. Mkenya Vibrant conducts all drone operations in compliance with the Kenya Civil Aviation Authority (KCAA) regulations. Clients are responsible for ensuring that all necessary permits and permissions for drone operations, including airspace clearance and site-specific permits, are obtained prior to the service date.
  2. Any fines, penalties, or legal actions arising from non-compliance with airspace regulations or failure to secure necessary permits will be the sole responsibility of the client.
2.2.2 Weather and Safety Conditions
  1. Drone operations are highly dependent on weather and safety conditions. Mkenya Vibrant reserves the right to cancel or reschedule drone services if weather conditions or other safety concerns make it impossible to perform the shoot.
  2. In cases of cancellation due to safety or weather concerns, we will offer an alternative date or provide a partial refund, depending on the circumstances.
2.2.3 Liability for Drone Operations
  1. Mkenya Vibrant is insured for drone operations, but the client agrees that Mkenya Vibrant will not be liable for any indirect, incidental, or consequential damages caused by drone use, such as property damage, business disruption, or personal injury, unless such damages are the direct result of negligence by Mkenya Vibrant.
  2. The client is responsible for ensuring that the shoot location is safe and free from hazards that may interfere with drone operations. The client must inform Mkenya Vibrant of any known safety concerns or potential risks before the service begins.

2.3 Studio Hire Services

2.3.1 Bookings and Payments
  1. Studio hire is booked on a first-come, first-served basis. A 50% non-refundable deposit is required at the time of booking, with the remaining balance payable on the day of the hire.
  2. Failure to make full payment before the studio session will result in the cancellation of the booking, and the deposit will be forfeited.
2.3.2 Studio Use and Client Responsibility
  1. The client is responsible for any damage to studio equipment, fixtures, or furnishings during the hire period. A pre-hire inspection will be conducted, and any damages incurred will be charged to the client after the session.
  2. The client must return the studio to its original condition after the session. Any additional cleaning or repairs required will result in additional fees, which will be billed to the client.
2.3.3 Overage Charges

If the studio hire exceeds the booked time, additional fees will be charged at our standard hourly rate. These charges must be settled immediately after the session.

2.4 Design Services

2.4.1 Estimated Project Costs
  1. Project costs will be estimated in advance based on the client’s brief. The estimate will include an allowance for up to two rounds of revisions.
  2. Any changes to the scope of the project after work has begun, or requests for additional revisions, will result in additional charges based on our hourly studio rate.
  3. Any changes to the project scope must be communicated in writing, and any additional costs will be communicated to the client before further work begins.
2.4.2 Copyright and Ownership
  1. All designs, visuals, and concepts created by Mkenya Vibrant remain our intellectual property until full payment has been received.
  2. Upon final payment, the client will receive a license to use the design for the agreed-upon purposes. This license is non-transferable and does not include full ownership of the intellectual property unless explicitly agreed.
  3. We reserve the right to showcase completed design work in our portfolio and use it for promotional purposes unless otherwise agreed in writing.

2.5 Website and Systems Design Services

2.5.1 Project Scope and Costs
  1. The scope of website and systems design services will be defined in a signed contract or project brief. Mkenya Vibrant will provide an estimate based on the scope of work, including deliverables, timelines, and milestones.
  2. Any changes to the scope of the project after the work has begun must be agreed upon in writing and may incur additional charges. These changes will be billed at our standard hourly rate.
2.5.2 Payment and Deliverables
  1. A 50% deposit of the total project cost is required to begin website or systems design work. The remaining balance is due upon completion of the project, prior to the website going live or systems deployment.
  2. Mkenya Vibrant reserves the right to withhold final deliverables, including source code, databases, and other design elements, until the final payment is made.
2.5.3 Ownership and Intellectual Property
  1. Mkenya Vibrant retains ownership and intellectual property rights over all source code, databases, algorithms, design elements, and other materials developed during the website or systems design process until full payment has been received.
  2. Upon final payment, the client will receive a non-exclusive, non-transferable license to use the website or system for the specific purposes outlined in the project brief. This license does not grant the client ownership of the underlying source code or design elements, unless otherwise agreed in writing.
  3. Clients wishing to obtain full ownership of the intellectual property, including source code, must negotiate separate terms and may incur additional fees. Unauthorized modification, resale, or redistribution of the website or system without prior written consent from Mkenya Vibrant is prohibited and may result in legal action.
2.5.4 Website Hosting and Domain Registration
  1. If Mkenya Vibrant provides hosting services, the client’s website will be hosted on a third-party server, and the client agrees to comply with the terms and conditions of the hosting provider.
  2. Domain registration, renewal, and hosting services are billed annually. The client is responsible for keeping their domain and hosting fees up to date. Failure to make timely payments will result in the suspension or cancellation of the website. Mkenya Vibrant is not responsible for any data loss or service disruption caused by the failure to pay hosting or domain fees.
  3. Should the client decide to transfer their hosting or domain to a different provider, Mkenya Vibrant will facilitate the transfer but will not be liable for any downtime, loss of data, or interruptions caused during the transfer process.
2.5.5 Website Maintenance and Updates
  1. Mkenya Vibrant is not responsible for ongoing website maintenance or updates unless a separate maintenance agreement is signed. Maintenance services, if requested, are subject to additional fees and are billed on a monthly or annual basis.
  2. If the client chooses to manage the website independently, Mkenya Vibrant will provide the necessary credentials and instructions. However, the client assumes full responsibility for any issues arising from unauthorized modifications, software updates, or plugin installations.
2.5.6 Limitation of Liability for Website and Systems Design
  1. Mkenya Vibrant is not responsible for any loss of business, revenue, or data resulting from the use or malfunction of the website or system. The client assumes all risks related to the implementation and operation of the website or system.
  2. Our liability for any claims arising out of the website or systems design services will not exceed the total fees paid by the client for the specific project in question.
  3. Mkenya Vibrant is not liable for search engine rankings, as search engine algorithms frequently change. If the client requires ongoing SEO services, a separate contract must be agreed upon.

3. Payment Terms

3.1 General Payment Terms

  1. All invoices issued by Mkenya Vibrant must be paid within 30 days from the date of issuance, unless otherwise specified in writing. Late payments will incur a late payment fee of KES 2,000 per week.
  2. Clients who fail to make payment within the specified period may have their services suspended, including but not limited to website access, ongoing projects, and other deliverables.
  3. Mkenya Vibrant reserves the right to pursue legal action to recover any unpaid balances. The client is responsible for all legal costs incurred in the recovery of unpaid fees.

3.2 Advance Payments

  1. For all services, a 50% non-refundable deposit is required to begin any project. The remaining balance must be paid upon completion of the project and before final deliverables are released.
  2. For projects requiring more than three months to complete, Mkenya Vibrant may require interim payments at specific project milestones. These milestones and payment schedules will be communicated to the client in advance.
  3. Failure to make an interim payment will result in the suspension of work until the outstanding balance is settled.

3.3 Payment Methods

  1. Payments must be made by bank transfer, and the client will receive the necessary banking details on the invoice. Mkenya Vibrant does not accept physical forms of payment, such as cash or cheques.
  2. Clients are responsible for any bank charges or transaction fees incurred during the payment process. These charges must be paid in addition to the invoice total.
  3. In cases where staged payments have been agreed upon, the first payment must be made before the website or system goes live. If a staged payment plan is in place, and payments fall into arrears, Mkenya Vibrant reserves the right to suspend services until payments are up to date.

4. Intellectual Property Rights and Licensing

4.1 General Ownership Rights

  1. All materials, designs, systems, source code, and other intellectual property created by Mkenya Vibrant remain the exclusive property of Mkenya Vibrant until full payment is received for the specific project.
  2. Upon receiving full payment, the client is granted a non-exclusive, non-transferable license to use the deliverables (including websites, systems, designs, and media) for the specific purposes outlined in the project brief or contract. The client does not own the underlying intellectual property unless explicitly agreed in writing.
  3. Clients wishing to acquire full ownership rights, including original artwork files, source code, or other proprietary materials, must negotiate additional fees and obtain a separate agreement.

4.2 Client-Provided Content

  1. If the client provides Mkenya Vibrant with any content, including text, images, logos, or other media, the client guarantees that they have the legal right to use such content and that it does not infringe upon the intellectual property rights of third parties.
  2. The client will indemnify Mkenya Vibrant from any claims, damages, or legal action arising from the use of client-provided content, including but not limited to intellectual property infringement, defamation, or privacy violations.

4.3 Licensing for Stock Images and Third-Party Content

  1. Certain stock images, audio, and other third-party content provided by Mkenya Vibrant may be licensed only for use in a single project or website. These assets are not to be reused by the client for other purposes without obtaining additional licenses.
  2. The client is responsible for complying with any licensing restrictions related to stock images, video, music, or software provided by Mkenya Vibrant.

4.4 Portfolio and Promotional Use

  1. Mkenya Vibrant reserves the right to display any work created for the client in our portfolio, website, or promotional materials unless a non-disclosure agreement (NDA) or other legal restriction has been agreed upon in writing.
  2. If the client does not wish their project to be displayed in our portfolio, they must inform Mkenya Vibrant in writing at the start of the project. Additional fees may apply for exclusive rights or non-disclosure.

5. Service Cancellation and Refunds

5.1 Cancellation by the Client

  1. Clients may cancel their project or service with Mkenya Vibrant at any time by providing written notice. However, cancellation fees may apply depending on the stage of the project.
  2. If a project is canceled after work has commenced but before completion, the client will be responsible for payment of all work completed up to the cancellation date. This includes any non-refundable deposits and the cost of any materials or third-party services procured on behalf of the client.
  3. Refunds for canceled projects will only be provided in cases where Mkenya Vibrant has failed to deliver the agreed-upon services, and the client has given notice of non-performance in writing. Refunds will not be issued for changes in client preferences, delays caused by the client, or external factors beyond our control.

5.2 Cancellation by Mkenya Vibrant

  1. Mkenya Vibrant reserves the right to cancel any project or service if the client is found to be in breach of these Terms, including but not limited to failure to make timely payments, misuse of our services, or providing illegal or infringing content.
  2. In such cases, Mkenya Vibrant may terminate the service with immediate effect, and the client will remain liable for any outstanding fees.

5.3 Non-Refundable Deposits

  1. All deposits paid for any services are non-refundable. These deposits cover initial consultation, project planning, and setup costs.
  2. If the client cancels the project after the deposit has been paid, the deposit will be forfeited, and Mkenya Vibrant will retain the right to recover additional fees for work completed.

6. Data Protection and Privacy

6.1 Data Collection

  1. Mkenya Vibrant collects personal information necessary to provide services, including but not limited to names, email addresses, phone numbers, payment details, and other relevant data. This information is collected in accordance with the Data Protection Act, 2019 of Kenya and is used solely for the purposes of delivering our services, managing client relationships, and processing payments.
  1. By using our services, you consent to the collection, use, and processing of your personal data as outlined in our Privacy Policy. If you do not consent to the processing of your personal data, please refrain from using our services.

6.2 Data Usage

  1. The personal data collected from clients will be used for the following purposes:
    • To deliver the services you have requested.
    • To communicate with you about your projects and provide support.
    • To process payments and invoices.
    • To comply with legal obligations and requirements.
  2. Mkenya Vibrant may use client data for internal research and analysis purposes to improve the quality of our services.

6.3 Data Sharing

  1. Mkenya Vibrant does not share client data with third parties, except as necessary to fulfill our contractual obligations to you, comply with legal requirements, or as outlined in our Privacy Policy. In cases where third-party service providers are involved (e.g., payment processors, hosting providers), we ensure that these parties are contractually obligated to safeguard your data in compliance with applicable data protection laws.
  2. We will not sell, rent, or lease your personal data to any third party for marketing or other purposes without your explicit consent.

6.4 Data Security

  1. Mkenya Vibrant implements robust technical, administrative, and physical security measures to protect your personal data from unauthorized access, disclosure, or destruction. These measures include encryption, access controls, and regular security audits.
  2. While we take every precaution to safeguard your personal information, you acknowledge that no method of data transmission over the internet or electronic storage is 100% secure. As such, we cannot guarantee the absolute security of your data.

6.5 Client Responsibilities for Data

  1. If you provide us with access to personal data of third parties (e.g., employees, customers, partners), you are responsible for ensuring that such data has been obtained legally and that you have the necessary permissions to share it with Mkenya Vibrant. You also agree to indemnify us from any legal claims arising from unauthorized or unlawful use of such third-party data.
  2. You are responsible for maintaining the confidentiality of any login credentials, passwords, or other access controls provided to you for use in our CRM portal or website. Any unauthorized access resulting from your failure to protect such information is your responsibility.

6.6 Data Retention

  1. Mkenya Vibrant retains personal data for as long as necessary to fulfill the purposes outlined in this policy and to comply with legal, accounting, or regulatory obligations. Once personal data is no longer required for these purposes, it will be securely deleted or anonymized.
  2. If you wish to request the deletion of your personal data before the expiration of the retention period, you may submit a Data Deletion Request in accordance with our Privacy Policy. We will honor such requests unless there is a legal obligation to retain the data.

7. Warranties and Disclaimers

7.1 Service Warranties

  1. Mkenya Vibrant provides its services on an "as is" and "as available" basis, without any warranties or representations, whether express or implied. While we strive to deliver high-quality services, we do not warrant that the services will be uninterrupted, error-free, or completely secure.
  2. We expressly disclaim any and all warranties related to:
    • The functionality, performance, or accuracy of any website, system, design, or media provided.
    • The completeness or timeliness of the content delivered, including third-party content.
    • The ability of the client’s website or system to achieve specific business outcomes, such as search engine rankings, traffic, or sales.

7.2 Third-Party Content and Services

  1. Mkenya Vibrant may provide links to third-party websites, software, or services as part of our project deliverables. We do not control, endorse, or assume any responsibility for the accuracy, reliability, or availability of these third-party services.
  2. Any reliance on third-party content or services is at the client's own risk. We shall not be liable for any damages arising from the use or reliance on third-party resources.

7.3 Limitations on Liability

  1. To the fullest extent permitted by law, Mkenya Vibrant shall not be liable for any direct, indirect, incidental, special, or consequential damages, including but not limited to lost profits, loss of business, loss of data, or costs of procurement of substitute goods or services arising out of or related to:
    • The use or inability to use our services.
    • Delays or interruptions in service.
    • Errors, omissions, or inaccuracies in any content or service provided by us.
  2. In no event shall Mkenya Vibrant’s total liability to the client for any damages exceed the total fees paid by the client for the specific service giving rise to the claim.

8. Force Majeure

  1. Mkenya Vibrant shall not be liable for any failure to perform, or delays in performance, caused by events beyond our reasonable control, including but not limited to acts of God, government actions, war, terrorism, strikes, pandemics, natural disasters, internet or hosting service disruptions, or failures of third-party providers.
  2. In the event of a force majeure occurrence, we will notify the client as soon as possible and take reasonable steps to resume the affected services. Any time frames or deadlines impacted by the force majeure event will be extended by the duration of the event.

9. Governing Law and Dispute Resolution

9.1 Governing Law

  1. These Terms and any disputes arising from or related to your use of our services shall be governed by and construed in accordance with the laws of the Republic of Kenya, without regard to its conflict of law principles.
  2. Any legal action or proceeding arising out of or related to these Terms shall be brought exclusively in the courts of Kenya.

9.2 Dispute Resolution

  1. In the event of a dispute, claim, or controversy arising out of or in connection with these Terms, the parties agree to first attempt to resolve the issue amicably through good faith negotiations. If a resolution cannot be reached within 30 days, the parties may refer the matter to arbitration in accordance with the Arbitration Act, 1995 (Kenya).
  2. The arbitration will be conducted by a single arbitrator appointed by mutual agreement of the parties. If the parties cannot agree on an arbitrator, one will be appointed by the Chartered Institute of Arbitrators Kenya Branch.
  3. The arbitration will be conducted in Nairobi, and the decision of the arbitrator will be binding and enforceable in the Kenyan courts.

9.3 Legal Costs

  1. In any legal action or arbitration arising out of these Terms, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs, and expenses, in addition to any other relief granted by the court or arbitrator.

10. Termination of Services

10.1 Termination by Mkenya Vibrant

  1. Mkenya Vibrant reserves the right to terminate any service, with or without cause, by providing the client with 7 days' written notice. In cases of serious breach of these Terms, such as non-payment, infringement of intellectual property rights, or illegal activity, termination may occur immediately without prior notice.
  2. Upon termination, any outstanding balances must be settled within 30 days of the termination date. Failure to make timely payments will result in additional late fees and possible legal action for recovery.

10.2 Termination by Client

  1. Clients may terminate services at any time by providing Mkenya Vibrant with 30 days' written notice. Any services rendered up to the termination date will be billed and payable in full.
  2. Upon termination by the client, Mkenya Vibrant will provide any deliverables that have been completed and paid for up to the termination date.

11. Miscellaneous Provisions

11.1 Entire Agreement

These Terms constitute the entire agreement between Mkenya Vibrant and the client concerning the subject matter hereof and supersede all prior agreements, discussions, and understandings, whether written or oral, relating to the same.

11.2 Severability

If any provision of these Terms is found to be invalid, illegal, or unenforceable under applicable law, the remaining provisions shall remain in full force and effect.

11.3 Assignment

The client may not assign or transfer any rights or obligations under these Terms without the prior written consent of Mkenya Vibrant. We may assign or subcontract our obligations at any time without notice to the client.