GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (the “Terms and Conditions“) are entered into between you (the “Client”) and 5thBrand, a Kenyan corporation with its registered address at, Nairobi Kenya (“5thBrand “). The Client must read, agree with and accept all terms and conditions contained in these Terms and Conditions in order to use 5thBrand’s website, located at 5thbrand.co.ke, and related services (the “5thBrand Platform”).
BY CHECKING THE BOX AND CLICKING THE “SUBMIT” BUTTON THE CLIENT AGREE TO THESE TERMS AND CONDITIONS.
BY AGREEING TO THESE TERMS AND CONDITIONS, THE CLIENT PERSONALLY REPRESENT AND WARRANT THAT THE CLIENT IS (I) A NATURAL PERSON OF FULL AGE (I.E. AT LEAST EIGHTEEN YEARS OLD) AND OF SOUND MIND WHO IS OTHERWISE CAPABLE OF ENTERING INTO LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW, OR (II) ACTING ON BEHALF OF A LEGAL PERSON (I.E. ENTITY) WITH THE SUFFICIENT AUTHORITY TO BIND SAID LEGAL PERSON TO THESE TERMS AND CONDITIONS (IN WHICH CASE THE TERM “CLIENT” THROUGHOUT THESE TERMS AND CONDITIONS WILL REFER TO SUCH CLIENT ENTITY).
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE 5THBRAND PLATFORM.
Background
1.1. 5th Brand Inc offers IT consultancy services to potential customers through the 5th Brand Platform. The services are provided by 5thBrand through qualified, independent IT consultants engaged by 5thBrand (the “Experts“) for purposes of delivering the Project (as defined in Clause 4.1.2 below). Accordingly, references to an Expert throughout these Terms and Conditions, refer to an Expert acting on behalf of 5thBrand for purposes of delivering the Project.
1.2. These Terms and Conditions constitute the complete, final and exclusive embodiment of the entire agreement between the Client and 5thBrand with regard to this subject matter, however, subject to the SoWs and other written policies and procedures posted on the 5thBrand Platform. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such agreements, promises, warranties or representations.
1.3. There will be no contractual relationship between the Client and any Experts engaged by 5thBrand.
Rights to the 5th Brand Platform
2.1. 5th Brand and its licensors reserve all rights, including but not limited to intellectual property rights, in and to the 5th Brand Platform.
2.2. 5th Brand reserves the right to change the 5th Brand Platform at any time in 5th Brand’s sole and absolute discretion.
General obligations
Rules of conduct on the 5th Brand Platform
3.1.1. The Client agrees to comply with applicable laws, these Terms and Conditions and other written policies and procedures posted on the 5thBrand Platform. The Client agrees not to (i) violate any third-party rights, including but not limited to intellectual property rights, and (ii) “frame” or “mirror” any content contained on the 5thBrand Platform on any other server or internet-based device.
3.1.2. A consistent and high level of courtesy, respect, and professionalism is expected of the Client. The Client agrees to use good judgment when posting information, comments, feedback, potential projects or other content (collectively, “Content“) anywhere within the 5th Brand Platform, including Content regarding other clients, Experts, 5th Brand or any third party.
3.1.3. All Content posted on the 5th Brand Platform must be in English, of a professional nature, free of offensive language and free of advertisements for any other products or services. The Content must not request the provision of a service that is against applicable law, including but not limited to violations of intellectual property rights and import and export control laws. Content related to creation of adult or explicit content or Content that relates to modeling or acting is prohibited. The Content must not contain any information enabling or requesting contact or payment outside of the 5th Brand Platform.
3.1.4. The Client may be held legally responsible for damages suffered by other clients, Experts, 5th Brand or any third party as a result of legally actionable or defamatory Content posted within the 5th Brand Platform.
3.1.5. 5th Brand is not legally responsible for any Content posted or made available on the 5th Brand Platform by the Client, other clients, Experts or any third party. 5th Brand is not responsible for and does not monitor or censor Content for accuracy or reliability.
3.1.6. 5th Brand reserves the right to remove or restrict access to any Content posted or made available on the 5th Brand Platform, if 5th Brand considers such Content to be in violation of these Terms and Conditions or applicable law or if ordered to do so by a government authority or a competent court.
Access to the 5th Brand Platform
3.2.1. In order to access the 5th Brand Platform, the Client must create a 5th Brand account, through the 5th Brand Platform (the “5th Brand Client Account“).
3.2.2. Where the Client is a legal person, the 5th Brand Client Account must be opened in the name of the legal person, and the client information must be provided in respect of the legal person (not the natural person acting on behalf of the legal person).
3.2.3. The Client may not access or attempt to access the 5th Brand Platform by any means other than the interface provided.
3.2.4. The Client may not use Content from the 5th Brand Platform for any other purpose than the purpose for which it was made available and may not engage in any activity that interferes with or disrupts the functioning of the 5thBrand Platform. This includes neither uploading nor attaching an invalid or malicious or unknown file or inserting any external links that may be malicious or unknown to the Client.
Identity and account security
3.3.1. Identity information related to a 5th Brand Client Account must be correct and verifiable. The 5th Brand Client Account must be used by only one person (being either an entity or a natural person), and each person is allowed to use only one 5th Brand Client Account.
3.3.2. 5th Brand reserves the right to validate Client information at any time. 5thBrand reserves the right, directly or indirectly through third parties, to make any inquiries necessary to validate the Client’s identity and confirm the Client’s ownership of the Client’s email address and/or financial instrument(s). Failure to provide such information is a breach of these Terms and Conditions.
3.3.3. 5thB rand is not responsible for ensuring and maintaining the secrecy and security of the Client’s password related to the 5th Brand Client Account. This is the Client’s sole responsibility. The Client agrees not to disclose the password to any third party and shall be solely responsible for any use of or action that is taken through the use of such password on the 5thBrand Platform. The Client must notify the 5thBrand Support immediately if the Client suspects that the password has been lost or stolen (e-mail: support@5thbrand.co.ke).
TERMS AND CONDITIONS RELATED TO A PROJECT
Statement of work
4.1.1. Prior to the commencement of a Project (as defined in Clause 4.1.2 below), the Client and an Expert must agree in writing on a specification and description of the relevant Project in a statement of work available on the 5th Brand Platform. The agreed statement of work, supplemented and governed by these Terms and Conditions, are hereinafter referred to as the “SoW“.
4.1.2. The SoW shall describe in reasonable detail the services (including functionality, technology requirements, etc.) to be delivered by 5th Brand to the Client (the “Services“), the duration of the Project, milestones (if any), and other relevant information (all together with the Services referred to as the “Project“), and will be in the form of (i) a list of deliverables written in a single message in the 5th Brand Platform “workroom“; or (ii) one or more documents attached to the 5th Brand Platform “workroom“.
Estimating the price for a Project
4.2.1. Once a Project has been sufficiently defined and scoped in a SoW, Experts engaged by 5th Brand will be able to provide an estimate of their expected fees for completing the Project described in the SoW.
4.2.2. Whenever only one Expert submits an estimate, this estimate (with the addition of 5thBrand’s Profit Margin (as defined in Clause 4.4.2 below)) will constitute the fixed price available to the Client.
4.2.3. Whenever two or more Experts submit an estimate, 5th Brand calculates an average of the estimates provided, and the calculated average (with the addition of 5th Brand’s Profit Margin (as defined in Clause 4.4.2 below)) will constitute the fixed price available to the Client, irrespective of the choice of Expert.
4.2.4. Should the Client wish to move forward with the Project, the fixed price (following Clauses 4.2.2 or 4.2.3 above), which for the avoidance of doubt includes 5thBrand’s Profit Margin, will be the amount payable in USD by the Client to 5th Brand (the “Payment“).
Request of Expert
The Client may request its preferred Expert to perform the Services set out in the SoW between one or more Expert(s) having provided an estimate. However, it is 5th Brand’s sole and absolute right to appoint the specific Expert to perform the Services.
Payment
4.4.1. Prior to the Expert commencing a Project, the Client shall transfer the Payment to 5th Brand via one of the available payment methods on the 5th Brand Platform, with 5th Brand being the recipient and beneficiary of the funds.
4.4.2. Part of the Payment – corresponding to 17.5% of the estimate (see Clause 4.2 above) – represents 5th Brand’s profit margin (the “Profit Margin“). The Profit Margin is added to the estimate and is thus an integral part of the Payment. The Profit Margin is not subject to any refund, see Clause 4.12 below
.
Information provided to the Expert
4.5.1. Prior to the Expert commencing a Project, the Client must provide access to credentials as well as software and media files as requested by the Expert.
4.5.2.Failing to do so may cause a delay in the work, and 5th Brand cannot be held responsible for missing the agreed upon deadline due to such delay.
Performance of the Service
4.6.1. 5th Brand undertakes to perform the Services set out in the SoW. The Services will be executed by an Expert engaged by 5th Brand directly to the Client. Failing to meet the requirements in the SoW may lead to a full or partial refund of the Payment less 5thBrand’s Profit Margin which is non-refundable (see Clause 4.12 below).
4.6.2. Any work that is not expressly written in the SoW will be considered out of scope. Requests to complete work that is deemed out of scope of the SoW are handled via the ‘additional tasks’ function on the 5th Brand Platform and may result in additional payment(s) from the Client to 5th Brand.
Completion of a Project
4.7.1. Once a Project is finished, the Expert or 5thBrand may request the Client to review the work and mark the Project as ‘complete’ on the 5th Brand Platform in order to complete the Project.
4.7.2. The Client has seven calendar days to respond to the request and ask for modifications or ask for more time to review the work. 5th Brand reserves the right to mark a Project as ‘complete’.
Circumvention of the 5th Brand Platform
4.8.1. The Client may not circumvent the 5th Brand Platform by (i) paying the Expert outside of the 5th Brand Platform, or (ii) engaging in methods intended to bypass the estimate system enabling the Client to negotiate the price with the Expert(s).
4.8.2. A scenario, where the Client has been introduced to an Expert through the 5th Brand Platform and the Client then offers the Expert a direct employment opportunity (whether as an employee or any other employment or consulting status) where the Expert are paid by the Client outside of the 5th Brand Platform, also constitutes a circumvention of the 5th Brand Platform, in which case 5th Brand will be entitled to receive compensation from the Client amounting to (i) a payment of 25 % of the full-time and annualized year-one salary for the job that the Expert is being hired for or (ii) a fixed payment of USD 30,000, whichever is highest.
4.8.3. If the Client receives a request or encouragement to circumvent the 5th Brand Platform from an Expert, this should be reported immediately, and confidentially, to 5th Brand’s Support Team (e-mail: support@5thbrand.co.ke).
4.8.4. 5thBrand reserves the right to deactivate the 5th Brand Client Account, if the Client engages in, or attempts to engage in, any activity as described in this Clause 4.8, and to take other action, as appropriate.
Liability
4.9.1. The Client is liable for any direct loss incurred by 5th Brand under the general principles of Danish law for breaches of these Terms and Conditions, the SoW and/or other written policies and procedures posted on the 5th Brand Platform.
4.9.2. 5th Brand will not be liable for any loss incurred by the Client, unless due to gross negligence or willful misconduct, subject to the limitations set out in Clauses 4.9.3 and 7 below).
4.9.3. In no event will 5thBrand be liable for any consequential, special, incidental, exemplary or indirect loss or litigation costs, damages, installation and removal costs, or loss of data, production or profit. 5th Brand’s liability for any claim arising out of or in connection with these Terms and Conditions, the SoW and/or the Project shall not exceed USD 2,500. These limitations shall apply to any liability, arising from any cause of action whatsoever, whether in contract, tort, strict liability or otherwise, even if advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose.
Undertaking
5th Brand agrees to fix any bugs in the code that the Client may find within 28 calendar days after the Project was marked as complete. The undertaking does not cover conflicts, incompatibilities or bugs caused by any updates, software installed, misusage or modifications to the code made by the Client or any third parties after the Services has been delivered to the Client and the Project or additional tasks has been marked as complete either by the Client or 5th Brand.
Term and termination
4.11.1. The term of a Project commences on the date of acceptance of the SoW and continues in effect until the earlier of its termination or completion.
4.11.2. Both the Client, the Expert (on behalf of 5th Brand) and 5th Brand may terminate a SoW at any time, with or without cause, effective immediately upon written notice to the other party.
4.11.3. Upon the Client’s termination of a SoW, the Client will not recover any payments made to 5th Brand unless (i) the termination is due to 5th Brand’s material breach of these Terms and Conditions and/or the SoW, or (ii) agreed upon with 5th Brand by following the procedure set out in the Procedures for Resolution of Controversies and Disputes.
4.11.4. Upon the Expert’s or 5th Brand’s termination of a SoW or the Client’s termination due to 5th Brand’s material breach of these Terms and Conditions and/or the SoW, 5th Brand shall return payments related to the part of the Services which has not yet been completed, unless (i) the Client is entitled to recover a larger amount of the payments pursuant to the Procedures for Resolution of Controversies and Disputes, or (ii) the termination is due to the Client’s material breach of these Terms and Conditions and/or the SoW, in which case the Client will not recover any of the payments made.
Refund
4.12.1. 5thBrand’s Profit Margin (see Clause 4.4.2) is non-refundable. This applies irrespective of whether 5th Brand fails to meet the requirements in the SoW and/or whether the SoW is terminated. Accordingly, any reference to a potential refund or recovery of payments in these Terms and Conditions refer to a full or partial refund of the Payment deducted 5th Brand’s Profit Margin.
4.12.2. The Client may be entitled to receive a full or partial refund if 5th Brand fails to meet the requirements in the SoW.
4.12.3. Determination of the amount of refund (if any) must be made by following the Procedures for Resolution of Controversies and Disputes.
4.12.4. By marking the Project as ‘complete’, the Client acknowledges that the Project was delivered in full accordance with the SoW, in which case the Client will not be entitled to receive a refund.
4.12.5. Further, if the SoW has deviated from the original agreed SoW and the Client refuses to pay for the additional work carried out, the Client will not be entitled to receive a refund.
4.12.6. The Client may receive two types of refund:
4.12.6.1. Partial refund: If the Project is partially done or meets the SoW only partially, 5thBrand may grant a partial refund to the Client by following the procedure set out in the Procedures for Resolution of Controversies and Disputes. When receiving a partial refund, the Client is required to delete any content related to the part of the Project which was the object of the partial refund from the Client’s platform(s), and the Client acknowledges that the Client will not have any rights, including but not limited to Intellectual Property Rights (as defined in Clause 4.14.1), over this work.
4.12.6.2. Full refund: 5thBrand may grant a full refund to the Client by following the procedure set out in the Procedures for Resolution of Controversies and Disputes, in which case the Client acknowledges that the Client will not have any rights, including but not limited to Intellectual Property Rights (as defined in Clause
4.14.1), over any of the work related to the Project. The Client will have seven (7) days to delete any content related to the Project from the Client’s platform(s). If the Client fails to do so, 5th Brand reserves the right to send DMCA takedown letters and report the violation to the hosting company and the major search engines and take any legal action it may deem necessary. The Client will relinquish the right to take any legal action against 5th Brand or the Expert pertaining to said content.
Breach
4.13.1. Without limiting 5thBrand’s other remedies, 5thBrand reserves the right, to suspend or terminate the Client’s 5thBrand Account and refuse to provide any further access to the 5thBrand Platform, if
(i) the Client breaches these Terms and Conditions, the SoW or other written policies and procedures posted on the 5th Brand Platform;
(ii) 5th Brand is unable to verify or authenticate information provided by the Client; or
(iii) 5th Brand believes that the Client’s actions may cause legal liability for the Client, other clients, the Experts or 5thBrand. Once suspended or terminated, the Client may not continue to use the 5thBrand Platform under a different account or re-register under a new account.
4.13.2. The Client’s breach of these Terms and Conditions, the SoW and/or other written policies and procedures posted on the 5th Brand Platform may be prosecuted to the fullest extent of the law and may result in additional penalties and/or sanctions.
Intellectual property rights
General intellectual property rights
4.14.1. All intellectual property rights, including but not limited to copyrights, trademarks, designs, patent rights and utility models, inventions, production methods and other technical advances resulting from the provision of the Services (the “Intellectual Property Rights“), will be assigned from 5th Brand to the Client when the Client marks the Project as ‘complete’ and thus forfeits its right to receive a potential refund. 5th Brand shall receive no separate payment for the assignment of such rights. This applies irrespective of whether the right accrues as a result of the Expert’s own activities or in cooperation with 5thBrand. Upon completion of the Project, 5th Brand hereby agrees to assign to the Client, to the fullest extent permitted by law, all right, title, and interest in any and all such Intellectual Property Rights.
4.14.2. The assignment of Intellectual Property Rights as described in Clause 4.14.1 is subject to any limitations set out in the GNU Public License.
4.14.3. 5th Brand shall render all reasonable assistance to the Client for the protection and utilization of its Intellectual Property Rights, including, without limitation, the signing of all necessary documents.
Client Deliverables
4.14.4. The Client will provide 5thBrand and an Expert with any information, documentation, material, technical data, software and/or intellectual property, etc. (the “Client Deliverables“) as necessary for the performance of the Services.
4.14.5. The Client reserves all rights, including but not limited to all intellectual property rights (if any), to the Client Deliverables.
4.14.6. The Client undertakes to ensure that the Client Deliverables are free of any third-party rights, including but not limited to intellectual property rights. 5thBrand and/or the Expert cannot be held liable for violation of such third-party rights in connection with the performance of the Services.
4.14.7. Should the performance of the Services require for 5thBrand and/or an Expert to use any non-free pre-existing software, intellectual property or other information or material etc. this must be approved by the Client. Any costs related to such use is not included in the fixed price calculated pursuant to Clause 4.2.
4.14.8. 5th Brand and an Expert shall (i) on the 29th calendar day from completion of a Project or, (ii) immediately upon termination of a Project, return all Client Deliverables to the Client and further agree to destroy (a) all copies of Client Deliverables and (b) the work product, in or on 5th Brand’s and/or an Expert’s premises, systems, or any other equipment otherwise under 5th Brand’s and/or an Expert’s control.
Chargebacks
Once the Client has made a payment for a Project or an ‘additional task’, the Client agrees (i) to follow the procedure set out in the Procedures for Resolution of Controversies and Disputes and to be bound by its ruling and (ii) not to initiate a chargeback request with the card issuer.
Retainer projects
4.16.1. Services: A retainer project is a particular type of Project where 5th Brand undertakes to deliver services to the Client on an ongoing basis for a monthly pre-determined price. The services will be executed by an Expert engaged by 5th Brand directly to the Client. The services can be in the form of either a number of monthly hours or a predetermined work, which is to be specified in the SoW. A retainer project as well as the SoW are subject to the Terms and Conditions and other written policies and procedures posted on the 5th Brand Platform subject to the adjustments set out in this Clause 4.16.
4.16.2. Billing period and payment: A retainer project is paid on a monthly basis. One retainer period corresponds to the duration of one month. A retainer project can start on any day of the month. The Client is to pay the monthly amount at the beginning of each retainer period. The Client will be automatically billed for each retainer period at the same day each subsequent month until the SoW is terminated. At the end of a retainer period, the Client’s payment will be considered non-refundable and any unused hours will not be carried over from one retainer period to the following.
4.16.3. Additional work: Any work that is deemed outside of the scope of the retainer project, as set out in the SoW, must be agreed upon in a separate SoW.
4.16.4. Client responsibilities: The Client understands that the Expert is not an employee of the Client and that the retainer project is a collaborative, professional relationship of equals where mutual professional respect, courtesy, and consideration are expected. The Client understands that the Expert requires fair, realistic notice in order to attend to requests.
4.16.5. Term and termination of a retainer project: The term of a retainer project commences on the date of acceptance of the SoW and continues in effect until terminated. Both the Client and the Expert may terminate the SoW at any time, with or without cause, effective immediately upon written notice to the other party. Unless otherwise agreed in the SoW, (i) the Expert must continue to perform the Services for the remainder of the retainer period during which the SoW is terminated, unless otherwise requested by the Client, and (ii) the Client will not be entitled to recover any payments made related to the retainer period during which the SoW is terminated. For the avoidance of doubt, the Client will not be charged for the retainer period that follows the retainer period during which the SoW was terminated.
Confidentiality
4.17.1. The Client and 5th Brand shall keep confidential any information received concerning 5th Brand’s, the Client’s and an Expert’s business, including the 5th Brand Platform, the Project and the Services (“Confidential Information“).
4.17.2. In addition, the Client and 5th Brand undertake to impose a similar duty of confidentiality on employees, independent contractors and persons otherwise engaged by the Client and 5th Brand, respectively, who participate in the Projects.
4.17.3. The Client and 5th Brand further undertake not to use or disclose Confidential Information after expiry of a Project. The duty of confidentiality shall apply as long as such information constitutes Confidential Information.
4.18. Ratings and Feedback
5thBrand provides its feedback and rating system where clients may express their opinions publicly. 5thBrand does not monitor or censor these opinions or investigate any remarks posted by clients for accuracy or reliability. 5thBrand is not responsible for any feedback or comments posted on the 5thBrand Platform, even if that information is defamatory or otherwise legally actionable. Any effort to falsify feedback or manipulate an Expert by threatening with leaving negative feedback is a breach of these Terms and Conditions. 5thBrand reserves the right to delete ratings and feedback as 5thBrand considers appropriate.
PERSONAL DATA
Processing of personal data about you
Please refer to our Privacy Policy
General
If 5th Brand processes personal data on behalf of the Client as part of the provision of 5th Brand’s services, such processing must be carried out in accordance with applicable data protection legislation and the terms set forth in the data processing clauses in Clause 5.3 below (the “Data Processing Clauses“).
Data Processing Clauses between the Client and 5th Brand
General clauses
5.3.1. To the extent the services 5thBrand provides to the Client involve processing of personal data on behalf of the Client, the Client shall be regarded as a data controller (hereinafter the “Data Controller”) and 5thBrand shall be regarded as a data processor (hereinafter the “Data Processor”).
5.3.2. For the purposes of Clause 5.3, Data Controller and Data Processor shall collectively be referred to as “Parties” and separately as a “Party“.
5.3.3. Provided that personal data is processed, including collected, accessed, stored, such processing by Data Processor is subject to the territorial scope of Regulation (EU) 2016/679 of 27 April 2016 (“General Data Protection Regulation”). Data Processor shall comply with all requirements incumbent on Data Processor as set out in the General Data Protection Regulation, and as detailed in this Clause 5.3.
Data Processing and obligations of the Data Processor
5.3.4. Data Processor shall process personal data on behalf of Data Controller in relation to the services provided in accordance with these Data Processing Clauses, the Terms and Conditions and the SoW.
5.3.5. Personal data being processed by the Data Processor on behalf of Data Controller regards data relating to individuals provided to the Data Processor by the Data Controller, as defined, necessary and required for the provision of services under these Terms and Conditions and the SoW, which may include non-sensitive personal data and special categories of personal data, as based on the nature of the Client’s business and requirements.
5.3.6. In pursuance of the General Data Protection Regulation, Data Controller shall have the following obligations and rights as set out in the General Data Protection Regulation:
5.3.6.1. The Data Controller shall be responsible for ensuring that the processing of personal data takes place within the framework of the General Data Protection Regulation and the Danish Data Protection Act.
5.3.6.2. The Data Controller shall therefore have both the right and obligation to determine the purposes and the means of the processing of personal data.
5.3.6.3. The Data Controller shall be responsible for ensuring that the processing activities that the Data Processor is instructed to perform is in compliance with the General Data Protection Regulation and the Danish Data Protection Act.
5.3.7. In pursuance of the General Data Protection Regulation, Data Processor shall comply with all requirements incumbent on Data Processor as set out in the General Data Protection Regulation:
5.3.7.1. Data Processor shall process personal data on behalf of the Data Controller and may only process personal data on documented instructions from Data Controller unless required to do so by the European Union or member state law to which Data Processor is subject. In such case Data Processor must notify Data Controller of such legal requirement before the processing, unless the relevant law prohibits such notification on important grounds of public interests.
5.3.7.2. Data Processor must immediately notify Data Controller if, in Data Processor’s opinion, an instruction from Data Controller is contrary to the applicable data protection legislation.
5.3.7.3. Data Processor is hereby committed to strict confidentiality in relation to any personal data that Data Processor may process on behalf of Data Controller. The confidentiality obligation is ongoing and shall continue to be applicable, regardless of whether a SoW is terminated.
5.3.7.4. Taking into account the state of art, the costs of implementation and the nature, scope, context and purposes of the processing as well as risk of varying likelihood and severity of the rights and freedoms of natural persons, Data Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk pursuant to Article 32 of the General Data Protection Regulation in relation to security of the processing.
5.3.7.5. Taking into account the nature of the processing, Data Processor shall assist Data Controller by appropriate technical and organisational measures with the fulfilment of Data Controller’s obligation to respond to requests for exercising the data subject’s rights laid down in the General Data Protection Regulation. Data Processor shall be compensated for the time devoted in relation to the assistance with responses to requests regarding the data subject’s rights and the specific compensation will be agreed upon separately.
5.3.7.6. Taking into account the nature of processing and the information available to Data Processor, Data Processor warrants that it will assist Data Controller in ensuring compliance with any of Data Controller’s obligations pursuant to the applicable data protection legislation, including Article 32 (Security of processing), Article 33-34 (Notification and communication of a personal data breach), and potential obligations under Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the General Data Protection Regulation. Data Processor is entitled to receive separate compensation regarding such assistance and the specific compensation will be agreed upon separately.
5.3.7.7. The Parties agree that at the termination of the data processing, Data Processor shall, at the choice of Data Controller, (i) return all data processed and any copies thereof to Data Controller, or (ii) delete all data processed under these Data Processing Clauses, unless European Union and/or relevant member state law requires storage of such personal data.
5.3.7.8. Data Processor shall, upon request from Data Controller, provide access to all necessary information in order for Data Controller to ensure compliance with the obligations laid down in the General Data Protection Regulation. Data Processor shall also allow for, and contribute to, audits, including inspections, conducted by Data Controller or another auditor mandated by Data Controller. Data Processor is entitled to receive separate compensation in this regard.
5.3.7.9. Data Processor shall notify Data Controller without undue delay after becoming aware of a personal data breach.
Transfer of personal data to a third country
5.3.7.10. By accepting these Terms and Conditions, including these Data Processing Clauses, Data Controller accepts that Data Processor may transfer personal data to a third country, i.e. a country outside the EEA for which the European Commission has not confirmed a suitable level of data protection on the basis of an adequacy decision. To the extent that the Data Processor on behalf of the Data Controller transfers personal data to a third country, EU Standard Contractual Clauses or EU-U.S. Privacy Shield Framework shall be applicable. Data Processor will be required to ensure that such transfer is at all times lawful, including that there is an adequate level of protection of the transferred personal data. Same obligation applies in relation to Data Processor’s use of sub-processors (Experts) in third countries.
Sub-processing (use of Experts)
5.3.7.11. By acceptance of these Data Processing Clauses, Data Controller agrees that Data Processor may engage sub-processors (Experts) to assist in providing the services. Data Processor warrants and ensures that the sub-processing is lawful and that any and all sub-processors (Experts) undertake and are subject to the same terms and obligations as Data Processor as set out in these Data Processing Clauses. Should the sub-processors (Experts) not comply with their obligations, Data Processor shall remain responsible for all acts and omissions of its sub-processors (Experts).
INDEMNIFICATION
6.1. The Client shall indemnify, hold harmless and defend 5thBrand and its subsidiaries, affiliates, officers, agents, employees, consultants, representatives and agents (each an “Indemnified Party” for purposes of this Clause 6) from any and all claims, damages, liabilities, costs, and expenses arising from or relating to any claim, judgment, or adjudication that any work product, Project, Services or action or omission by 5thBrand and/or an Expert infringes intellectual property rights or other rights of any third party.
6.2. The Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to the Client’s use of the work product and/or Project.
WARRANTY DISCLAIMER
5TH BRAND MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, 5TH BRAND PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THE PROJECT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 5THBRAND DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
MISCELLANEOUS
Notices
Notices shall be given by
(i) the Client to 5th Brand via email to legal@5thbrand.co.ke (or to such other email address as 5th Brand may specify in writing) and
(ii) 5th Brand to the Client by (a) a post on the 5th Brand Platform or
(b) email to the email address provided by the Client.
Changes to these Terms and Conditions
8.2.1. If required by applicable law or court order, 5thBrand may at any time and without prior notice make changes to these Terms and Conditions and other written policies and procedures posted on the 5th Brand Platform.
8.2.2. Further, editorial changes to these Terms and Conditions and other written policies and procedures posted on the 5thBrand Platform may be made by 5th Brand at any time and without prior notice.
8.2.3. Other changes to these Terms and Conditions and other written policies and procedures posted on the 5th Brand Platform than as set out in Clauses 8.2.1 and 8.2.2 must be made with 1 month’s prior written notice to the Client.
No Waiver of rights
The failure or delay of either party to exercise or enforce any right or claim in these Terms and Conditions does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
Transfer
The Client may not transfer any of its rights or obligations under the SoW and/or these Terms and Conditions, without 5th Brand’s prior written consent by a duly authorized representative of 5th Brand.
Severability
If any provision of these Terms and Conditions is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of these Terms and Conditions and the provision in question shall be modified by the court so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible.
Dealing with a controversy or a dispute
In case a controversy or a dispute related to a Project, SoW, these Terms and Conditions and/or other written policies and procedures posted on the 5th Brand Platform should arise between the Client and 5th Brand, the Client and 5th Brand agree to engage in discussions in good faith in order to try to resolve the controversy or dispute. Further, the Client expressly agrees to follow the procedure set out in the Procedures for Resolution of Controversies and Disputes and to be bound by the ruling.
Governing law and venue
8.7.1. These Terms and Conditions, the SoW and other written policies and procedures posted on the 5th Brand Platform shall be governed by and construed in accordance with the laws of Kenya, save for those rules under Kenyan law which may lead to the application of the laws of another jurisdiction than Kenya. Any disagreement or dispute between the parties relating to these Terms and Conditions, the SoW and other written policies and procedures posted on the 5th Brand Platform shall be settled by the Court in Kenya.
8.7.2. Not with standing this Clause, either party shall be entitled to seek interlocutory remedies such as an injunction, attachment, etc. with any law court of competent jurisdiction.
