Terms & conditions

Introduction and Acceptance

These Terms and Conditions ("Terms") constitute a legally binding agreement between you ("Client," "you," or "your") and Tinker Digital Limited (Kenya) and Tinker Digital LLC (USA), collectively referred to as "Tinker Digital," "Company," "we," "us," or "our."

These Terms govern your access to and use of our website, products, and services, including but not limited to software development, infrastructure and DevOps, marketing and strategy, branding and identity, quality assurance and testing, and photography and videography services.

Definitions

• "Agreement" means these Terms and any supplementary agreements, statements of work, or project proposals executed between the parties.
• "Confidential Information" means any non-public information disclosed by either party, including but not limited to business strategies, technical data, designs, and financial information.
• "Deliverables" means all work product, materials, and outputs created by Tinker Digital under a project agreement.
• "Intellectual Property" means all patents, copyrights, trademarks, trade secrets, designs, and other proprietary rights.
• "Project" means any engagement for Services governed by a statement of work or project proposal.
• "Services" means all services provided by Tinker Digital, including software development, design, marketing, branding, photography, videography, and related consulting services.
• "Website" means tinker.co.ke, withtinkerdigital.com, and any associated subdomains or applications.

Services

3.1 Scope of Services

Tinker Digital provides professional digital services including:

• Software Development: Custom software, web applications, mobile applications, and API development.
• Infrastructure & DevOps: Cloud architecture, deployment automation, and system administration.
• Marketing & Strategy: Digital marketing, SEO, content strategy, and campaign management.
• Branding & Identity: Logo design, visual identity systems, and brand guidelines.
• Testing & QA: Software testing, quality assurance, and security assessments.
• Photography & Videography: Professional photo and video production, editing, and post-production.

3.2 Project Agreements

All Projects shall be governed by a separate statement of work ("SOW") or project proposal that details the specific scope, timeline, deliverables, and fees. In the event of any conflict between these Terms and a SOW, the SOW shall prevail for that specific Project.

3.3 Modifications to Services

Any changes to the agreed scope of Services must be documented in a written change order signed by both parties. We reserve the right to adjust timelines and fees in response to scope changes.

Client Responsibilities

The Client agrees to:

• Provide accurate, complete, and timely information, materials, and feedback as required for the Project.
• Designate an authorized representative to communicate with Tinker Digital and make binding decisions.
• Obtain all necessary rights, licenses, and permissions for any materials provided to Tinker Digital.
• Review and approve Deliverables within the timelines specified in the SOW.
• Ensure that any Client-provided systems, accounts, or access credentials are properly secured.
• Comply with all applicable laws and regulations related to the Project.

Failure to fulfill these responsibilities may result in project delays, additional fees, or termination of the Agreement.

Intellectual Property Rights

5.1 Client Materials

The Client retains all Intellectual Property rights in materials provided to Tinker Digital, including logos, content, and other proprietary materials. The Client grants Tinker Digital a limited, non-exclusive license to use such materials solely for the purpose of performing the Services.

5.2 Deliverables

Subject to full payment of all fees, Tinker Digital assigns to the Client all Intellectual Property rights in the final approved Deliverables specifically created for the Client under the Agreement, excluding:

• Pre-Existing Materials: Any materials owned by Tinker Digital prior to the Project or developed independently.
• Third-Party Materials: Materials licensed from third parties, which remain subject to their original licenses.
• Tools and Methodologies: General tools, frameworks, and methodologies used in providing Services.

5.3 Portfolio Rights

Unless otherwise agreed in writing, Tinker Digital reserves the right to display and reference completed work in its portfolio, case studies, and marketing materials, subject to confidentiality obligations.

5.4 Open Source and Third-Party Components

Deliverables may include open source software or third-party components, which remain subject to their respective licenses. Tinker Digital will disclose such components and their licenses upon request.

Payment Terms

6.1 Fees

Fees for Services shall be as specified in the applicable SOW or proposal. All fees are quoted in the currency specified and are exclusive of applicable taxes unless otherwise stated.

6.2 Payment Schedule

Unless otherwise agreed in writing, the following payment schedule applies:

• Deposit: 50% of the total project fee due upon signing the Agreement.
• Milestone Payments: As specified in the SOW, if applicable.
• Final Payment: Remaining balance due upon completion and delivery of final Deliverables.

6.3 Invoicing and Late Payment

Invoices are due within 14 days of the invoice date unless otherwise specified. Late payments may be subject to:

• Interest at the rate of 1.5% per month (or the maximum rate permitted by law).
• Suspension of Services until the account is brought current.
• Recovery of collection costs, including reasonable legal fees.

6.4 Taxes

The Client is responsible for all applicable taxes, duties, and levies, excluding taxes on Tinker Digital's income. If Tinker Digital is required to collect taxes, such amounts will be added to invoices.

Warranties and Disclaimers

7.1 Service Warranty

Tinker Digital warrants that:

• Services will be performed in a professional and workmanlike manner consistent with industry standards.
• Deliverables will substantially conform to the specifications in the approved SOW for a period of 30 days following delivery.
• Tinker Digital has the right to enter into this Agreement and provide the Services.

7.2 Remedy

If Deliverables do not conform to the warranty, Client's exclusive remedy is for Tinker Digital to correct the non-conforming Deliverables at no additional charge. This remedy is contingent upon Client providing written notice of the defect within 30 days of delivery.

7.3 Disclaimer

7.4 Third-Party Services

Tinker Digital is not responsible for the performance, availability, or terms of any third-party services, platforms, or integrations recommended or implemented as part of the Services.

Limitation of Liability

8.1 Exclusion of Consequential Damages

IN NO EVENT SHALL TINKER DIGITAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR BUSINESS OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Cap on Liability

TINKER DIGITAL'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY THE CLIENT TO TINKER DIGITAL DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

8.3 Exceptions

The limitations in this Section 8 shall not apply to: (a) breaches of confidentiality obligations; (b) infringement of Intellectual Property rights; (c) gross negligence or willful misconduct; or (d) payment obligations.

Indemnification

9.1 Client Indemnification

The Client agrees to indemnify, defend, and hold harmless Tinker Digital, its officers, directors, employees, and agents from and against any claims, damages, losses, and expenses (including reasonable legal fees) arising out of:

• Client's breach of this Agreement.
• Client's materials or content infringing third-party rights.
• Client's violation of applicable laws or regulations.
• Client's use of the Deliverables beyond the scope authorized.

9.2 Tinker Digital Indemnification

Tinker Digital agrees to indemnify and defend the Client from claims that the Deliverables (excluding Client materials and third-party components) infringe any third-party Intellectual Property rights, provided the Client promptly notifies Tinker Digital and allows Tinker Digital to control the defense.

Confidentiality

10.1 Confidentiality Obligation

Each party agrees to maintain the confidentiality of the other party's Confidential Information and to use it only for purposes of performing under this Agreement. Each party shall protect Confidential Information using at least the same degree of care used to protect its own confidential information.

10.2 Exclusions

Confidential Information does not include information that:

• Is or becomes publicly available through no fault of the receiving party.
• Was known to the receiving party prior to disclosure.
• Is independently developed without use of the disclosing party's Confidential Information.
• Is rightfully obtained from a third party without restriction.
• Is required to be disclosed by law or court order (with prior notice to the disclosing party).

10.3 Duration

Confidentiality obligations shall survive termination of this Agreement and continue for a period of five (5) years from the date of disclosure, or indefinitely for trade secrets.

Term and Termination

11.1 Term

This Agreement is effective upon acceptance and continues until all Services are completed or the Agreement is terminated as provided herein.

11.2 Termination for Convenience

Either party may terminate this Agreement or any Project for convenience upon 30 days' written notice. Upon such termination, the Client shall pay for all work completed and expenses incurred through the termination date.

11.3 Termination for Cause

Either party may terminate this Agreement immediately upon written notice if the other party:

• Materially breaches this Agreement and fails to cure such breach within 15 days of written notice.
• Becomes insolvent, files for bankruptcy, or has a receiver appointed.
• Engages in illegal activity related to the Services.

11.4 Effects of Termination

Upon termination:

• Client shall pay all outstanding fees for Services rendered.
• Each party shall return or destroy the other party's Confidential Information.
• Provisions that by their nature should survive shall continue in effect.
• Intellectual Property rights in paid-for Deliverables shall transfer as provided in Section 5.

Non-Solicitation

During the term of the Agreement and for a period of twelve (12) months thereafter, neither party shall, without prior written consent, directly or indirectly solicit, recruit, or hire any employee or contractor of the other party who was involved in the Services.

Force Majeure

Neither party shall be liable for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, labor disputes, government actions, pandemics, natural disasters, or interruption of utilities or telecommunications. The affected party shall promptly notify the other party and use reasonable efforts to mitigate the impact.

Website Terms of Use

14.1 Acceptable Use

When using our Website, you agree not to:

• Violate any applicable laws or regulations.
• Infringe on the rights of others, including Intellectual Property rights.
• Transmit viruses, malware, or other harmful code.
• Attempt to gain unauthorized access to our systems.
• Interfere with the proper functioning of the Website.
• Collect or harvest user data without authorization.
• Use the Website for any unlawful or fraudulent purpose.

14.2 Website Content

All content on the Website, including text, graphics, logos, and images, is the property of Tinker Digital or its licensors and is protected by applicable Intellectual Property laws. You may not reproduce, distribute, or create derivative works without our express written permission.

14.3 Third-Party Links

Our Website may contain links to third-party websites. We are not responsible for the content, accuracy, or practices of these websites. Inclusion of any link does not imply endorsement.

Dispute Resolution

15.1 Negotiation

The parties agree to attempt to resolve any dispute arising out of this Agreement through good-faith negotiation. Either party may initiate negotiations by providing written notice of the dispute.

15.2 Mediation

If the dispute is not resolved within 30 days of negotiation, the parties agree to submit the dispute to non-binding mediation before a mutually agreed mediator.

15.3 Arbitration

If mediation is unsuccessful, any dispute shall be finally resolved by binding arbitration under the rules of the applicable arbitration body:

• For Kenya: The Nairobi Centre for International Arbitration (NCIA).
• For USA: The American Arbitration Association (AAA).

The arbitration shall be conducted in English. The arbitrator's decision shall be final and binding, and judgment may be entered in any court of competent jurisdiction.

15.4 Exceptions

Nothing in this Section 15 shall prevent either party from seeking injunctive or other equitable relief from a court of competent jurisdiction to protect its Intellectual Property rights or Confidential Information.

Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with:

• For Tinker Digital Limited (Kenya): The laws of the Republic of Kenya, without regard to conflicts of law principles.
• For Tinker Digital LLC (USA): The laws of the State of Wyoming, USA, without regard to conflicts of law principles.

The applicable entity and governing law shall be determined based on the contracting entity specified in the Project agreement or, if not specified, based on the Client's primary place of business.

General Provisions

17.1 Entire Agreement

This Agreement, together with any applicable SOW, constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, or agreements relating to the subject matter.

17.2 Amendment

These Terms may be amended by Tinker Digital at any time by posting the updated Terms on the Website. Continued use of the Services after such changes constitutes acceptance of the amended Terms.

17.3 Waiver

The failure of either party to enforce any right or provision of this Agreement shall not be deemed a waiver of such right or provision.

17.4 Severability

If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

17.5 Assignment

Neither party may assign this Agreement without the prior written consent of the other party, except that Tinker Digital may assign this Agreement to an affiliate or in connection with a merger or sale of assets.

17.6 Independent Contractors

The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.

17.7 Notices

All notices under this Agreement shall be in writing and sent to the addresses provided by each party. Notices may be delivered by email, certified mail, or internationally recognized courier.

Contact Information

For questions about these Terms or our Services, please contact us:

Tinker Digital Limited (Kenya)

663 Olenguruone Road, Nairobi, Kenya
Phone: +254 737 113711
Email: [email protected]

Tinker Digital LLC (USA)

30 N Gould St Ste N, Sheridan, WY 82801, USA
Phone: +1 (307) 364-6053
Email: [email protected]