WEBSITE TERMS AND CONDITIONS

Your privacy is important to us. It is ovakast’s policy to respect your privacy regarding any information we may collect from you across our websites, pixelcounsel.com, ovakast.com, frame54.com and other sites we own and operate.

1. INTRODUCTION
   1. These Terms govern your access to the website located at www.ovakast.com and associated web pages \(“Website“\).  These Terms are a valid and binding contract between you and us. 

1. It is therefore important that you read and understand these Terms. You may not access the Website unless you agree to abide by these Terms without modification. By accessing the Website and/or registering on the Website, you signify your agreement to these Terms.

1. Please note that these Terms make use of a series of terms and phrases which have specific meanings as listed below, together with general interpretive principles which are used to interpret these Terms.

1. If you have any questions regarding our Website, the terms, products or services, please access: legal@ovakast.com to contact us.

1. DEFINITIONS 
   1. These Terms may contain a number of terms and phrases which have a specific meaning in this document.  In these Terms, headings are for convenience and shall not be used in its interpretation.

1. Unless it is indicated contrary in these Terms, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.

1. The following expressions shall bear the meaning assigned to them below and related expressions shall bear corresponding meanings –

“access” when used in the context of –

1. a website, means to visit, use, load in a web browser, mobile phone or similar software application or device or otherwise engage with a website;
2. content, means to copy, download, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate such content;

“content” means all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images\) which you may have access to as part of, or through your access to the Website;

“intellectual property” means, collectively, the patents, copyrights (and moral rights), trademarks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, know-how, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same) which we own, license, use and or hold (whether or not currently) on or in connection with the Website;

“know-how” means all the ideas, designs, documents, diagrams, information, devices, technical and scientific data, secrets and other processes and methods we use in connection with the Website, as well as, all available information regarding marketing and promotion of the products and services described in these terms of use, as well as all and any modifications or improvements to any of them;

“Online Account” means your online customer profile account against which account you can transact online or in store, subject to these terms and conditions;

“post” means to upload, publish, transmit, share or store;

“Product” means the products which can be purchased on the Website in terms of these Terms;

“Terms” means these terms and conditions of use, as amended from time to time including the Disclaimer (ovakast.com), Privacy Policy www.pixelcounsel.com 

“Trademarks” means those trademarks we own (or which we are designated as beneficial 

owner of) and any other trademarks, designs, logos, style names, tag lines and slogans which we own or have the right to use or any derivative service offerings of, and applications for, any of same;

  “you” and “Users” means the Website’s users;

“us”, “we” and “ovakast limited” registration number CPR/2021/66198, a private company duly incorporated in accordance with the company laws of Kenya (including our affiliates and subsidiaries) 

1. Any reference in these Terms to a party shall, if such party is liquidated or sequestrated (the meaning of which includes any analogous proceedings in any other jurisdiction), be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.

1. When any number of days is prescribed such number shall exclude the first day and include the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of Kenya, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday in the Republic of Kenya;

1. All annexures, addenda and amendments to these Terms form an integral part of these Terms and, therefore, our contract with you.

1. AMENDMENTS TO THE WEBSITE

We reserve the right, in our sole discretion, to, and you agree that we may, amend these Terms at any time, in any way and from time to time.  We will publish the amended Terms on the Website.  These amendments shall come into effect immediately and automatically and you will be bound by them.  It is your responsibility to review these Terms regularly and to ensure that you familiarize yourself with any amendments to these Terms.  If you do not agree with any amendments to these Terms, you may no longer access the Website.

1. LEGAL AGE AND CAPACITY
   1. You may not access the Website and may not accept these Terms if you lack the legal capacity to enter into a binding contract with us; are a person barred from accessing to the Website under the laws of Kenya or other countries including the country in which you are resident or from which you make access the Website.

1. In accessing the Website you represent and warrant that you are of full legal age \(having reached the age of 18), or are emancipated or have your guardian’s consent to enter into a contract, being these Terms.

1. WE MAY CHANGE ASPECTS OF THE WEBSITE
   1. We may add new features and modify or even discontinue existing features without notice to you and in our sole discretion.  You agree to this.

1. You are free to stop accessing the Website at any time without notifying us.  Doing so will not affect the results of or remove the effects of your access to the Website. 

1. PERSONAL INFORMATION
   1. Please refer to our Privacy Policy  insert yours privacy-link for further information about the personal information we collect from you through your access to the Website and how we process this personal information the terms of which are deemed incorporated into these terms and conditions.
   2. We may ask you to submit your personal information to us through the Website in order to access aspects of the Website or make use of services we offer on or through the Website.

1. You warrant that the personal information you submit is accurate, current and complete.  You will be denied access to the Website should you breach this warranty or subsequently be found to have breached this warranty.

1. We may take steps to verify your personal information which you submit to us. You irrevocably consent to this verification process.  You acknowledge and agree that your access to the Website may be limited until such time as the verification process has been successfully completed.

1. Should you not agree to the verification process or withhold your consent as contemplated above, your access to the Website, generally, may be suspended or terminated and you waive any claims you may have against us, our officers, directors, employees, servants, agents and/or contractors arising out of our denial of access to you to the Website.

1. PRIVACY POLICY

We shall take reasonable steps to protect your personal Information.  Details of what personal information we collect, what we do with it and what you should know about submitting personal information when you access the Website can be found in our Privacy Policy ………insert your link to the privacy policy page.  We recommend you read our Privacy Policy very carefully before you access the Website.

1. ACCEPTABLE USE
   1. You may not access the Website for or in conjunction with any illegal, unlawful or immoral purposes or as prohibited by these Terms.

1. You may not frame the Website in any way whatsoever without our prior written permission.  Recognizing the global nature of the Internet, you agree to comply with all local laws, rules and regulations regarding your conduct on the Website.

1. You agree to adhere to generally acceptable Internet and e-mail etiquette. In this regard, without being limited to the examples listed below, you agree not to:

1. engage in any abuse of e-mail or spamming, including, without being limited to –

1. the posting or cross-posting of unsolicited content with the same or  substantially the same message to recipients that did not request to receive such messages; and

1. inviting people who you may be connected to using third party services to access the Website where those people may not wish to receive such invitations or similar communications \(in other words, make sure your contacts on other services are receptive to receiving invitations to joining us and accessing the Website or other communications you send them from us);

1. engage in any activity intended to entice, solicit or otherwise recruit Website users to join an organization except where we expressly authorize such activities in writing;

1. take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent your affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the Website;

1. use the Website to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights;

1. use the Website to make fraudulent offers to sell or buy products, items or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”;

1. use the Website in a manner that may infringe the intellectual property rights (for example copyright or trademarks) or other proprietary rights of others;

1. use the Website to post anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;

1. gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the services to collect or attempt to collect personal information about third parties without their knowledge or consent;
2. violate the privacy of any person in any way including, but not limited to, sharing any person’s personal information without their consent to do so;

1. attempting to gain unauthorized access to the Website or any other network, including \(without being limited to\) through hacking, password mining or any other means;

1. otherwise use the Website to engage in any illegal or unlawful activity.

1. Should you engage in any one or more of the above practices, which shall be determined in our sole discretion (and which decision shall be final), then we shall be entitled, without prejudice to any other rights we may have, to:
   1. without notice, suspend or terminate your access to the Website;
   2. hold you liable for any costs we incur as a result of your misconduct; and/or
   3. notwithstanding our Privacy Policy referred to above, disclose any information relating to you, whether public or personal, to all persons affected by your actions where we are compelled by law to do so.

1. LICENSES
   1. Our license to you
      1. We grant you a personal, non-commercial, revocable, worldwide, royalty-free, non-transferrable and non-exclusive licence to access our content on the Website.  This licence is for the sole purpose of enabling you to access the Website, in the manner permitted by these Terms.  In the event we revoke this license, you may no longer access the Website.

1. Unless we have given you specific written permission to do so, you may not transfer, through an assignment of rights, sub-licence or otherwise, your rights to access the Website.

1. To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any content is expressly permitted (such permission to be interpreted in its most restrictive sense) you may do so, provided that all trademarks, trade names, copyright, ownership, proprietary and confidentiality notices as are included on the original content are retained and displayed without alteration or modification and not in any manner obscured or removed.

1. You acknowledge that you do not acquire any ownership rights or rights of use in or to any content by copying, reproducing, distributing, transmitting, displaying, broadcasting or publishing that content except where explicitly permitted to do so in these Terms or otherwise in writing from us.

1. You may only cache the Website if:
   1. the purpose of caching is to make the onward transmission of the content from the Website more efficient;
   2. the cached content is not modified in any manner whatsoever;
   3. your manner of access to the data complies with general conditions of access set out in these Terms;
   4. you do not interfere with the lawful use of technology to obtain information about how the cached data is being used;
   5. the cached content is updated at least every 12 (twelve) hours; and
   6. the cached content is removed or updated when we request that do so.

1. Your licence to us
   1. We do not claim any ownership rights in your content. You retain any rights that you may already have in your content should you post your content to or otherwise access the Website, subject to the limited license you grant to us.

1. In the event you post any content on, to or through the Website, you grant us a non-exclusive, fully-paid, royalty free, transferrable and worldwide license to moderate, use, modify, delete from, add to, publicly perform, publicly display, reproduce or distribute such content solely on or through the Website including without limitation, distributing part or all of your content in any media formats and through any media channels and make use of the content in our advertising campaigns.

1. The licence you grant to us means that –

1. you are free to license your content to anyone else in addition to us;
2. we are not required to pay you for the use of the content you post to the Website;
3. we may make commercial use of your content;
4. we are able to use our affiliates, sub-contractors and other partners such as Internet content delivery networks and wireless carriers to make the Website available; and
5. the license extends to anywhere in the world because of the global nature of the Internet and the fact that our users can access the content from anywhere in the world.

1. Because you can only lawfully license content you have certain rights in, you represent and warrant that:
   1. you own the content you post to or through the Website or otherwise have the right to grant the license set forth in this section, and
   2. posting your content to or through the Website does not violate the privacy rights, publicity rights, intellectual property rights or copyright, contractual rights or any other rights of any person or entity.

1. You also agree to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any content you post to or through the Website.

 

1. LIMITATION OF LIABILITY
   1. To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied, including and without limitation to the implied warranties that the content published to the Website is fit for any purpose.

1. When you access the Website, it is entirely at your own risk. The Website is made available to you “as is”.

1. Although we take steps to verify information presented on or through the Website, we do not warrant the accuracy or reliability of any advice, opinion, statement, or other information contained in, displayed on, linked to or distributed through the Website that we and/or other users may publish to the Website.  You acknowledge that any reliance upon any such opinion, advice, statement or information shall be at your sole risk.  We reserve the right, in our sole discretion, to correct any errors or omissions on or relating to the Website without notice to you.

1. 10.4.Information, ideas and opinions expressed on or through the Website should not be regarded as professional advice or our official opinion and you are strongly advised to seek appropriate professional advice before acting on such information.

1. Whilst we take reasonable precautions in our operation of the Website, neither we or our agents or representatives will assume any responsibility and neither we or our agents or representatives (in whose favour this constitutes a stipulation alteri or stipulation for another) shall be liable for any damages to or for viruses that may infect your computer equipment or software or other property on when you access the Website.  Any content you access through the use of the Website is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from accessing to the Website.

1. We will use reasonable endeavors to make the Website available to you, and keep the Website available to you at all times.  However, you agree that we shall not be liable in respect of any loss or damage caused by or arising from the unavailability of, any interruption in or your use of the Website access \(either in part or as a whole\) for any reason whatever.

1. You further agree that –

1. under no circumstances whatsoever, including as a result of our negligent acts or omissions or those of our directors, officers, servants, agents or contractors or other persons for whom in law we may be liable, shall we or our directors, officers, servants, agents or contractors or other persons for whom in law we may be liable \(in whose favour this constitutes a stipulatio alteri or stipulation for another\), be liable for any direct, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss, damage or damages of any kind whatsoever or howsoever caused \(whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable\), including but not limited to any loss of profits, loss of revenue, loss of operation time, corruption or loss of information, content or data and/or loss of contracts sustained by you, your directors, servants, dealers or customers, resulting from your use of or inability to access to the Website;

1. you waive and may not bring any claims or legal action arising out of, or related to Website access or these Terms more than 6 \(six\) months after the cause of action relating to such claim or legal action arose.

 

1. INDEMNITY

You hereby indemnify us and our directors, officers, employees, servants, agents and/or contractors and/or other persons for whom in law we may be liable (in whose favour this constitutes a stipulatio alteri or stipulation for another) from any loss, damage, damages, liability, claim or demand due to or arising out of your access to the Website or your breach of these Terms.

1. RIGHTS INFRINGEMENT

1. If you are of the view that your rights have been infringed through the unlawful use of the Website access by other Website users or third parties, you may address a complaint to us by emailing legal@ovakast.com Please include the following information in your complaint which may be of assistance in resolving the problem:

1. the full names and address of the complainant;
2. the written or electronic signature of the complainant;
3. identification of the right that has allegedly been infringed;
4. Identification of the material or activity that is claimed to be the subject of unlawful activity;
5. the remedial action required to be taken by the service provider in respect of the complaint;
6. telephonic and electronic contact details, if any, of the complainant;
7. a statement that the complainant is acting in good faith;
8. a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.

1. We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action where necessary.  Such action may include, but is not limited to, removing the offending content from the Website and/or appropriate action taken against the relevant user and/or third party.

1. DEALINGS WITH THIRD PARTIES

1. Links to and from the Website from and to other Websites belonging to or operated by third parties (“linked Websites”) do not constitute our endorsement of such linked Websites or their contents nor do we necessarily associate ourselves with their owners or operators.  You are solely responsible for identifying and familiarizing yourself with any terms and conditions which will govern your relationship with such third party/ies.

1. We have no control over linked Websites and you agree that we are not responsible or liable for any content, information, goods or services available on or through any such linked Websites or for any damage, damages or any other loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, information, goods or services available on or through any such linked Websites. You further agree that where you access linked Websites, you do so entirely at your own risk.

1. Your interaction, correspondence or business dealings with third parties which are referred to or linked from or to the Website is similarly entirely at your own risk and are solely between you and such third party including the acquisition, disposal, payment and delivery of any goods or services, and any terms, conditions, warranties or representations associated with such interaction, correspondence or business dealings.

1. GOVERNING LAW AND JURISDICTION

1. The Website is controlled and maintained from our facilities in Kenya. You irrevocably agree that the law of the Republic of Kenya shall govern your access to the Website and these Terms.

1. You consent to the jurisdiction of the Kenyan courts in respect of disputes which may arise out of your access to the Website and these Terms.

1. WE MAY MONITOR YOUR COMMUNICATIONS

1. Subject to the provisions of the Data Protection Act 2019, Laws of Kenya and all the relevant laws applicable in the circumstances you agree to permit us to intercept, block, filter, read, delete, disclose and use all communications you send or post to us or the Website or using the Website and/or to our staff and/or employees.

1. You agree and acknowledge that the consent you provide above satisfies the “writing” requirement specified in the Act.

1. We reserve the right, but have no obligation, to monitor the content you post on the site. We reserve the right to remove any such information or material for any reason or no reason, including without limitation if in our sole opinion such information or material violates, or may violate, any applicable law or our Terms, or to protect or defend our rights or property or those of any third party. We also reserve the right to remove information upon the request of any third party.

1. SEVERABILITY

Any provision in these Terms which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto \(as if it were not written\) and severed from these Terms, without invalidating the remaining provisions of these Terms.

1. TERMINATION

If you breach any of these Terms, we may immediately, automatically and without notice to you, terminate your access to our Website, and/or prohibit your future access to the Website, and/or take appropriate legal action against you \(including without limitation, applying for urgent and/or interim relief or claiming damages\), without incurring any liability to you of any nature whatsoever and howsoever arising, and all of our rights in this regard are expressly reserved.

1. GENERAL TERMS
   1. You agree that:
      1. you are bound by these Terms;
      2. data messages addressed by you to us shall be deemed to have been –

1. received if and when responded to;
2. sent by you within the geographical boundaries of Kenya;

1. electronic signatures, encryption and/or authentication are not required for valid electronic communications between you and us;
2. as well as warrant that data messages that you send to us from a computer, IP address or mobile device normally used by you, was sent and/or authorised by you personally.

1. These Terms read together with the Builders Privacy Policy and the Builders website disclaimer constitute the whole agreement between you and us relating to your access to the Website.

1. No indulgence, extension of time, waiver or relaxation of any of the provisions or terms of these Terms which we may show, grant or allow you shall operate as an estoppel against us in respect of its rights under these Terms nor shall it constitute a waiver by us of any of our rights and we shall not thereby be prejudiced or stopped from exercising any of its rights against you which may have arisen in the past or which might arise in the future.

1. Nothing in this agreement shall create any relationship of agency, partnership or joint venture between you and us and you shall not hold itself out as our agent or partner or as being in a joint venture with us.

1. COLLECTION OF COOKIES

A cookie is a piece of information that is deposited on your computer’s hard drive by your web browser when you use our computer server. The cookies enable us to recognize you and give us information about your previous visits. Most browsers accept cookies automatically, but usually you can alter your settings to prevent automatic acceptance. If you choose not to accept cookies, this may disable some of the features of our Website. The information that we collect and may share with our advertisers is anonymous and not personally identifiable. It does not contain your name, address, telephone number or email address

1. ONLINE REGISTRATION

1. Registration on the Website is free and does not oblige you to purchase anything.

1. Registration and/or use of our Website constitute your acceptance and agreement to be bound by the terms of our Website. To register you will be required to provide certain personal information which is protected by our privacy policy.

1. When registering, you will be required to provide an email address and a password which will be used as your username for the Website. Please keep your password private as we accept no liability for any damages suffered or losses incurred from the use or misuse of your account. Your password must consist of a minimum 8 \(eight\) characters which must include a minimum 1 \(one\) capital letter, 1 \(one\) number and 1 \(one\) special character.

1. You will be required to enter your email address and password each time you visit our Website. To amend any registration particulars please click on “My Account” > “My Profile” where you can edit your details.

1. In registering as a purchaser you are required to provide frame54.com with complete and accurate information about yourself. By doing so you warrant that the information provided is correct. Upon acceptance of your registration, you will receive an email confirming your registration as a purchaser on the Website.