Terms & Conditions of Use for Esite

  1. Parties

This Terms & Conditions set forth the terms and conditions between Fishmask Group Limited and apply to anyone who visits the E-Site website or uses any of our products or services. Your use of our website, products or services constitutes your acceptance of these Terms of Use. "we", "our" or "us" means Fishmask Group Limited and all its current and future subsidiaries. "you" “user” “customer” means the person using our E-Site Platform.

  1. Definitions of Terms

 "Intellectual Client Rights" includes without limitation any copyright, patents, trademarks, design rights or database rights, whether registrable or not, and whether registered or not, and also includes any other proprietary rights, trade secrets or rights of publicity, privacy or confidentiality;

"License" means the permission we give to you to use our Software products and which is given under the terms of the relevant Software Agreement;


"Services" means all products, goods or services we provide to you including our Website;


"Software" means the software we provide to you as part of our products and means for example the E-Site software;


"Software Agreement" means the relevant license agreement under which any of our Software products are purchased and comprises the terms and conditions contained in these Terms of Use which are expressly or by implication intended to apply to the license of the Software;


"Website" means the E-Site website;


"User" means a person setup to use the Services and is a person who can have all available or limited privileges in using the Software. It is possible to create a User who will never access the system, the functions of such a user will be performed by a user with a higher degree of security privileges.


Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment.


The headings to the clauses of these Terms of Use are for convenience only and do not affect its interpretation.


In addition to these 'Terms of Use' other contractual terms may apply to some Services. It is important that you are familiar with all of the terms applying to your use of our Services. 


  1. Subject of the Terms & Conditions

This Terms & Conditions document is executed so as to govern the terms and conditions applicable to the Client’s use of the E-Site Platform and the Fishmask Group Limited-provided Service as well as the minimum conditions which must be included in any contact between the Client and the Customers.

Additional or different conditions may be included relating to use of the Service or E-Site Platform in various areas of the E-Site Platform, and shall be considered an annex to and an integral part of these Terms & Conditions. In case of discrepancy between these Terms & Conditions and any addition condition applicable to a certain area of the E-Site Platform, such additional conditions shall prevail.


  1. The Service

During the applicable Subscription Term, Fishmask Group Limited shall make the E-Site Service purchased under an applicable Order Form available to Customer, its Authorized Users, and Registered Clients pursuant to the terms of this Agreement. The Service will include the features and functionality applicable to the version of the Service ordered by Customer. Fishmask Group Limited may update the content, functionality, and user interface of the Service from time to time in its sole discretion.

Fishmask Group Limited hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement), revocable right to access and use the Service, pursuant to the terms of this Agreement, during the applicable Subscription Term.

Customer shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service.

Customer is responsible for use of the Service by its Construction Siteand Registered Clients and for their compliance with this Agreement. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data.

Fishmask Group Limited may request that Customer suspend the account of any Authorized User or Registered Client who (a) violates this Agreement; or (b) uses the Service in a manner that Fishmask Group Limited reasonably believes may cause a security risk, a disruption to others’ use of the E-Site Service, or liability for Fishmask Group Limited. If Customer fails to promptly suspend or terminate such Authorized User, then Fishmask Group Limited reserves the right to do so and/or to suspend or terminate Customer’s account.

 

  1. E-Site Platform Terms & Conditions


  • The features which the Client may use on the E-Site Platform are limited to the scope of the Service categories or types subscribed to, and details of the Services are provided on the Website. Features of the E-Site Platform, and of the software and designs under the E-Site Platform are limited to the scope defined on the Website, and Fishmask Group Limited does not guarantee in any way that the E-Site Platform and Services will meet the E-Site Platform’s specific needs.

  • In no way or for no reason is the Client entitled to copy, alter, reproduce, reverse engineer, decompile the E-Site Platform or any content thereunder, otherwise access the E-Site Platform software’s source code, or create derivative work from the E-Site Platform or use the E-Site Platform for any purpose other than set forth under these Terms & Conditions. The Client shall not interfere in any way to the E-Site Platform, including but not limited to use of viruses, cancel bots, Trojan horses, malwares, flood pings, DOS attacks, spoofing, misdirection, e-mail information or other methods and uses of technology, and shall act in accordance with the security measures of Fishmask Group Limited and security providers. It is strictly forbidden to alter the E-Site Platform-related browsers and contents in any way, or provide links to or from the E-Site Platform without explicit consent of Fishmask Group Limited.

  • The Client agrees and undertakes that any information, content, correspondence and announcement uploaded by the Client is accurate and legal, shall not be of illegal or immoral nature such as defamation, smearing, discrediting statement, insult, slander, threat or harassment, and shall not infringe any right. The Client also represents that such content will not contain any malicious materials such as virus, spyware, malware, Trojan horse etc., and that the E-Site Platform will not be used for such purposes as data mining.

  • Fishmask Group Limited shall store and use any information or data provided to it in the course of its relationship with the Client in accordance with the “Privacy Policy”, which is an annex to these Terms & Conditions. The Client agrees that Fishmask Group Limited may disclose the Client-related information in Fishmask Group Limited’s possession to relevant authorities if so demanded by such authorities under the applicable regulations, and to any Customer which is in a dispute with the Client so that such Customer may use its legal rights.

  • Access to the E-Site Platform may be temporarily disabled to implement improvements and other modifications to the E-Site Platform. In this case, Fishmask Group Limited shall show every effort to keep such interruptions as short as possible to ensure a minimal impact on E-Site Platform use and to perform the same at the hours where E-Site Platform use is at lowest intensity.

  • In the event that the Client requests Client-specific services other than those described on the Website and provided “AS IS”, and/or wishes to engage consulting activities available on the Website, the conditions governing such services shall be determined and priced separately.

 

  1. Intellectual Client Rights

 

  • Fishmask Group Limited owns any right, Client and interest on the E-Site Platform, the Service and any software, design etc. works produced as part of the Services. No provision under this Terms & Conditions may be interpreted as partial or complete transfer of any related right, Client and interest to the Client. The Client is hereby granted a non-exclusive, term-limited, non-transferable right on said Service, software, design etc. content. On the other hand, the Client owns any right on the content provided by the Client through the E-Site Platform, and Fishmask Group Limited is granted a global, free, non-transferable and non-exclusive license to use such content (right to use), subject to these Terms & Conditions.

  • The Client shall not in any way use the trade name, brand, service brand, logo, domain name etc. of Fishmask Group Limited (or any of its affiliates), nor shall it infringe any intellectual and industrial Client, privacy etc. rights of any person or organization.

  • In using the E-Site Platform and the Service, the Client shall observe any third party rights, including copyrights and personal rights. Fishmask Group Limited shall be entitled to suspend temporarily or terminate the Service in the event of discovery that any third party right has been infringed.

 

  1. Limitation of Liabilities

 

  • The Client agrees to defend, indemnify and hold harmless Fishmask Group Limited and its directors, managers, employees and agencies against any claim, liability, damage and expense, including but not limited to reasonable legal and accounting fees, arising from or in connection with violation of these Terms & Conditions including its annexes or the regulations or use of the Service or the E-Site Platform.

  • Fishmask Group Limited is not a mediator, agency or insurer vis-à-vis the Client. Fishmask Group Limited is only obliged to provide the Service hereunder, and the Client agrees and represents that Fishmask Group Limited is not a party to the relationship between the Customers and/or the Agencies and the Client, that the only responsibility of Fishmask Group Limited under the Service is to technically bring the relevant parties together, and that Fishmask Group Limited in this regard may not be held liable for any contractual or regulatory violation on part of the Customers or the Agencies. Any request by the Client from the Customer or the Agencies shall be directly communicated to the relevant party.

  • The Client is solely liable for any content that may be uploaded to the E-Site Platform, and any claim or damages arising from such contents shall be communicated to or recovered from the Client. The Client agrees and represents that Fishmask Group Limited is under no obligation to check authenticity, originality, security or accuracy of any product or service offered through the Service, including any content provided by other Properties, or to identify whether or not the sales or online sales thereof is legal, and that Fishmask Group Limited is not liable for any damage arising from or in connection with such products, services and contents.

  • The Client agrees and represents that the E-Site Platform may contain links to other websites and/or E-Site Platforms, files or contents not under the control of Fishmask Group Limited, such links do not constitute any representation or guarantee so as to support the redirected website or the operator of such website or concerning such website or any information contained therein, and Fishmask Group Limited is not liable for any Platform, website, file, content, service or product or the content thereof accessed via such links.

  • The E-Site Platform, the Service under the E-Site Platform and other contents are offered “AS IS”, and Fishmask Group Limited is not liable for or does not provide any guarantee as to accuracy, completeness or reliability thereof.

  • The Client is personally responsible for procurement of such hardware, software and connection as required to access the Service, and for any cost arising therefrom. The Client also agrees that the access to the Service and contents offered through the E-Site Platform, and the quality thereof, are to a large extend dependent on the quality of service provided by the internet service provider, and that Fishmask Group Limited is not responsible in any way for the issues stemming from said quality of service.

  • TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, FISHMASK GROUP LIMITED SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR PENAL DAMAGES ARISING FROM USE OF THE E-SITE PLATFORM, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF GOODWILL AND REPUTATION, OR OTHER COSTS SUCH AS EXPENSES TO PRODUCE REPLACEMENT PRODUCT AND SERVICE.

 

  1. Duration and Termination of Terms & Conditions

 

  • These Terms & Conditions shall be effective upon start of the Service and remain so as long as the Client receives the Service. In case where the Service is offered as a free trial, the Service free trial period will automatically terminate if the Client fails to communicate payment details to Fishmask Group Limited despite the notification from Fishmask Group Limited towards end of the period. In case where the Parties also execute a Commercial Conditions agreement, the conditions relating to the period and renewal may be set forth separately under such Commercial Conditions agreement.

  • Continuity of the E-Site Platform and the Service is at the discretion of Fishmask Group Limited, who may suspend or terminate them anytime it wishes. Each Party has the right to terminate the Service(s) and/or these Terms & Conditions any time. In such an event, neither Party may claim anything from the other party except their receivables accruing during the Service.

  • Termination by the Client or Fishmask Group Limited of any Service used by the Client through the E-Site Platform shall not affect applicability of these Terms & Conditions to other services; while termination of all of the Services or these Terms & Conditions shall cause the integration of the Client with the Service and the E-Site Platform to be terminated immediately and the Client-owned content shall be erased permanently.

  • In case where the Service has been suspended or terminated as set forth under the Terms & Conditions, the Client may not claim any damages, such as indemnity, loss of profit, loss of customers etc. In the event that the Service or the Terms & Conditions are terminated for a reason attributable to the Client, no amount paid in advance by the Client shall be refundable.


  1. Privacy

All information and data entered by you into the E-Site system is treated as confidential. We will not sell, rent, lease, or give away your data, our user list, email addresses or any other personal information unless required by law to do so. We will not contact you unless you opt-in to a user email list or have requested to be notified of bug-fixes or new features. We will endeavor to keep your information safe and secure. Unfortunately, due to the very nature and environment of the internet, we cannot ensure that all communications and personally identifiable information will never be disclosed.



  1. Force Majeure

Fishmask Group Limited shall not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of Fishmask Group Limited, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”).

Fishmask Group Limited shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof).

Fishmask Group Limited shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event.


  1. Fees and Payment

Subscription Fees. Customer’s Subscription Fees are set forth in the applicable Order Form delivered to Customer by Fishmask Group Limited. All Subscription Fees are subject to change upon notice. Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to Fishmask Group Limited. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise expressly provided for herein. The number of Construction Sites paid for under a Subscription cannot be decreased during the applicable Subscription Term.


Auto-Renewal. Customer agrees that its Subscription will automatically renew on a monthly basis after the initial Subscription Term (the “Renewal Date”) at the then-current Subscription Fee. If Customer has an annual Subscription Term, Fishmask Group Limited will endeavor to notify Customer by email at least thirty (30) days prior to the expiration of the Subscription Term to inquire whether Customer would like to renew for another annual Subscription Term. Customer authorizes Fishmask Group Limited to automatically charge Customer for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement. If Customer wishes to reduce the number of Construction Site in its Subscription, they must do so prior to the Renewal Date. Customer must cancel its Subscription prior to the Renewal Date in order to avoid being charged the applicable Subscription Fee for the relevant Subscription Term on the Renewal Date. Customer can cancel its Subscription any time by contacting its customer success representative or emailing support@fishmask.co.ke; however, if Customer attempts to cancel their Subscription during the Subscription Term, Customer will not be issued a refund for the most recent Subscription Fee (or any previously) charged fees and the Subscription will terminate on the next applicable Renewal Date.


Calculation. Subscription fees are based on annual or monthly periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual or monthly anniversary thereafter. Customer shall purchase a Subscription to the Service for each Construction Site, and the initial number of Construction Sites is reflected in the applicable Order Form. Customer may add Authorized Sites to its Subscription at any time on written notice to Fishmask Group Limited (email notice is acceptable). If Customer has an annual Subscription Term, the fees for additional Construction Sites will be calculated at the then-current fee multiplied by the months remaining in the Customer’s Subscription Term.


Future Features and Functionality. Customer acknowledges and agrees that any purchases under this Agreement are not contingent upon the delivery of any future feature or functionality or dependent upon any oral or written public or private comments made by Fishmask Group Limited regarding future features or functionality. Fishmask Group Limited shall release Improvements and other features and functionality in its discretion.