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WEB HOSTING AGREEMENT

WEB HOSTING AGREEMENT

This Hosting Agreement (the "Agreement") governs your purchase and use, in any manner, of all hosting services ordered by you ("the Customer") and accepted by Domain Name Registrar Internet Solutions Kenya, trading as Domain Registration Services ("DNRA"). The hosting services subject to this Agreement are those services included in the Service Options selected by you during the ordering process (collectively, the "Services"). The available Service Options are located at http://www.isolutionskenya.com. This Agreement describes the terms and conditions that apply to such purchase and use of the Services. You must accept the terms of this Agreement to use the Services.

By checking the box that says “I have read and accepted the terms of service” and registering for and using the Services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions contained herein as well as all policies and guidelines incorporated by reference. If you do not agree to the terms of this agreement or any modification, do not check the box and do not continue to use the services.


1 Hosting Services

1 The Customer has ordered, and DNRA agrees to provide (upon acceptance of the Customer's purchase request), the Services pursuant to the Service Options selected by the Customer. As part of the Services, DNRA will configure, install, house, maintain, upgrade, monitor, modify and operate the computer equipment, server(s), operating software, network equipment and components (collectively, "DNRA's Systems") as necessary to host and serve the Customer's Content (as defined below) via the Internet in accordance with the Service Options. The Customer acknowledges that, as a part of DNRA's Systems, DNRA may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the Services hereunder. Subject to the specific terms of this Agreement, DNRA retains sole right and control over the programming, content and conduct on DNRA's Systems. The Customer is responsible for securing and maintaining its own Internet connectivity to access DNRA's Systems.

.2 Any Customer Domain shall be hosted and administered in accordance with terms of the Domain Agreement (which can be found here http://www.isolutionskenya.com.

.3 DNRA may assign IP addresses to the Customer as part of the Services. Any IP addresses or other network numbers assigned to the Customer by DNRA are and shall remain the property of DNRA. If the Customer terminates this Agreement or DNRA ceases to provide domain name services, DNRA may, in its sole discretion, reassign or reuse the IP addresses. DNRA has sole discretion as to the Internet routing of any DNRA network numbers. Upon termination, DNRA will not have, and the Customer hereby releases DNRA from, any responsibility or liability for any actions or costs related to the reassignment or reconfiguration of the Customer's system for any new IP addresses.

4. DNRA shall use commercially reasonable efforts to make DNRA's Systems and the Service available 99.5% of the time (the "Uptime Goal"). The Uptime Goal shall be measured within DNRA's System on a monthly basis calculated to include 24 hours per day over each month, but excluding from the numerator and denominator in the calculation the duration in time of any temporary shutdowns due to scheduled maintenance (which will not exceed in the aggregate 10 hours per month), telecommunications or power disruptions caused by third parties, and any other causes beyond DNRA's reasonable control. Any failure of DNRA to satisfy the Uptime Goal shall not constitute a breach of this Agreement. The Customer further acknowledges and agrees that its sole and exclusive remedy for any failure of DNRA to provide the services in accordance with the uptime goal is to terminate this Agreement

5 If the Customer uses any bandwidth or storage space in excess of the Service Options, DNRA may, in its sole discretion, assess the Customer with additional charges, suspend the performance of the Services, or terminate this Agreement. In the event that DNRA elects to take any corrective action, the Customer shall not be entitled to a refund of any unused pre-paid fees. The Customer’s use of the Services and access to it is the Customer’s responsibility. The Customer is responsible for any unauthorised access to the Services resulting in bandwidth and/or storage usage exceeding the limits in the Order Form and resultant charges. Should shared server Customers exceed the specified limits, DNRA will ask them to upgrade to a larger plan or purchase additional bandwidth or storage space.

6. DNRA reserves the right to change or modify the Services, any Service Options, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion. DNRA will send a notice to the Customer of any such changes and will post a notice of such changes on DNRA's web site www.isolutionskenya.com. Changes to this Agreement or Service Options will be effective 15 days after the notice is posted. Changes to any policy or guidelines governing the Services, including the Acceptable Use Policy, shall be effective upon posting to the DNRA site. The Acceptable use Policy forms part of this Agreement. If the Customer does not agree to any change to this Agreement, the Service Options, or any governing policy or guideline, the Customer's sole remedy is to immediately terminate this Agreement pursuant to Section 5 (notwithstanding any notice period). The Customer's continued use of the Services following DNRA's posting of any changes to this Agreement, the Service Options, or any policy or guideline will constitute the Customer's acceptance of such changes or modifications.

7. The Customer may change Service Options under the Agreement with appropriate prior notice.

2 VIRUS PROTECTION SOFTWARE/ANTI SPAM SOFTWARE

2.1 A virus protection service (“Virus Service”) is automatically activated for Customers holding EMAIL5, HOST10, HOST20, HOST40 or HOST100 hosting plans with DNRA (“New Servers”)

2.2 A spam filtering service (“Spam Service”) is available upon election to Customers on New Servers.

2.3 The Virus Service and the Spam Service (together, “Spam/Virus Services:” are not available to Customers on hosting plans other than the New Servers. (“Old Servers”) Customers who are on Old Servers who wish to have access to either or both of the Virus Service and Spam Service may request a priority transfer by DNRA from the Old Server to a New Server

2.4 The Customer acknowledges that no anti-virus software can guarantee to detect 100% of viruses and accepts use of the Spam/Virus Services at its own risk.

2.5 DNRA reserves the right to remove attachments from incoming email messages if there is any indication that the attachment is, or might be, infected with a virus.

2.6 The Customer acknowledge that DNRA cannot and does not warrant that the Spam/Virus Services installed on DNRA's servers will detect all viruses present in e-mails scanned by and transmitted via DNRA's servers.

2.7 DNRA makes no warranty that the Spam/Virus Services will be error free or free from interruption of failure.

2.8 DNRA expressly disclaims any express or implied warranty regarding system and/or the Spam/Virus Services availability, accessibility, or performance.

2.9 The Spam/Virus Services provide a high level of protection against viruses but the Customer acknowledges and agrees that it is solely responsible for protecting its property and email accounts from virus threats hacking or website 'hijacking'.

2.10 DNRA offers no guarantee that the Spam/Virus Services will capture all unwanted email sent to the Customer, nor that all wanted email will be passed through the filter.

2.11 The Customer acknowledges that some email may be made unavailable when using the Spam/Virus Software, and by requesting to use the filter the Customer assumes all liability for any lost or altered email.

2.12 By choosing to use the Spam/Virus Software, the Customer agrees to hold DNRA faultless for any damages resulting from the use of the filtering service.

2.13 The software installed on DNRA's servers minimises the risk of receiving SPAM and viruses through email delivered via DNRA’s servers only and does not mean a computer will not be affected by a virus. DNRA recommends that Customers also have Anti-virus programs for extra protection for viruses that may arrive through the Customers use of CD-ROM's, floppy disks and downloads.

2.14 The Customer waives any claims against DNRA in connection with access to or use of the Spam/Virus Services installed on DNRA's servers, including without limitation any claims based upon the deletion, misdirection or delay of emails and loss of, damage to, records or data. Due to the volatile nature of the Internet and its offerings, the accuracy of the performance of the Spam/Virus Services is not guaranteed by the supplier of the Software, nor is it guaranteed by DNRA.

2.15 Email transmitted from DNRA servers will not be scanned by the Spam/Virus Services until the Customer has indicated its willingness to utilise these services by:
(a) activating the Spam/Virus Services via its web hosting account Personal Control Panel; or
(b) sending an email to info@isolutionskenya.com requesting that all email sent to its domain be scanned for viruses by the Spam/Virus Services.

2.16 Use of the Spam/Virus Services is subject to the Spam/Virus Service's Owner's terms and conditions located at www.isolutionskenya.com


3 The Customer Content; Acceptable Use

3.1 Customer Content

3.1.1 The Customer hereby grants DNRA a limited, non-exclusive, royalty-free, non-sublicensable license to host, reproduce, transmit, cache, store, exhibit, publish, display, distribute, perform, edit, adapt, modify, create derivative works from, and otherwise use the Customer Content solely as necessary to provide the Services for the Customer. "Customer Content" means all materials, code, data, text (whether or not perceptible by users), metatags, multimedia information (including, but not limited to sound, data, audio, video, graphics, photographs, or artwork), the Customer Domain(s), e-mail, chat room content, bulletin board postings, or any other items or materials of the Customer or any third party that are provided or permitted by the Customer to reside on DNRA's Systems.

3.1.2 The Customer shall be solely responsible for all Customer Content, including, without limitation, any content or materials of a third party that the Customer permits or enables to be posted onto or through DNRA's Systems. Subject to the terms of this Agreement, the Customer shall (a) be solely responsible for the creation, posting, updating and maintenance of the Customer Content; and (b) manage, renew, create, delete, edit, maintaining and otherwise control the editorial content of the Customer Content. DNRA will not be responsible for reviewing the Customer Content prior to its posting by the Customer. DNRA will not be responsible for keeping and maintaining a current version of the Customer Content. The Customer shall be entirely responsible for obtaining any insurance in relation to any loss or damage caused to the Customer Content, or any other of the Customer's data held in DNRA's Systems.

3.1.3 The Customer is responsible for ensuring that the Customer Content will be "server ready" and otherwise remain fully compatible with DNRA's Systems (including all software and operating systems). The Customer acknowledges that it is responsible for having the necessary knowledge and expertise to maintain the Customer Content on DNRA's Systems. DNRA reserves the right to remove any the Customer Content that is not compatible with DNRA's Systems. Upon request from the Customer, and at the Customer's sole expense, DNRA may assist the Customer in resolving any compatibility problems on a time and materials basis.

3.2 Acceptable Use


3.2.1 The Customer shall at all times adhere to all applicable laws, rules and regulations and to DNRA'S then current Acceptable Use Policy as set out herein as Schedule A. Any breach of this Policy by the Customer will entitle DNRA to elect to terminate this Agreement, without notice to the Customer.

3.2.2 DNRA may inspect the Customer Content or investigate any alleged violation of this Agreement, DNRA's policies or any third-party complaints. DNRA will not access or review the contents of any e-mail or other stored electronic communications except as required or permitted by applicable law or legal process. In the event that DNRA determines in its sole and reasonable discretion that any the Customer Content or conduct or actions of the Customer (including its employees and users) are objectionable, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, DNRA may take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, the Customers and/or third parties. Such corrective action includes, but is not limited to: (a) issuing a warning; (b) immediately suspending or terminating the Services; (c) restricting or prohibiting access to any the Customer Content that is objectionable or otherwise violates this Agreement or applicable policy; and/or (d) disabling or removing hypertext links, the Customer Content or the content of any third party from DNRA's Systems. In the event DNRA takes corrective action, DNRA shall not refund any fees paid in advance of such corrective action. Without limiting the foregoing, it is DNRA's policy to terminate its services for repeated violations of DNRA's Acceptable Use Policy. The Customer agrees that DNRA is not liable for any defamatory or illegal content or any content contrary to DNRAS' Acceptable Use Policy. The Customer warrants to indemnify DNRA for any and all liability, damages, awards of costs (on an indemnity basis or otherwise), legal costs (on a solicitor-client basis) and disbursements (including barristers' fees) arising by way of the provision of DNRA's Services and Systems to the Customer resulting in the perpetuation of any defamatory material, or the infringement of any third parties' intellectual property rights, or the breach of any other law of Australia or elsewhere (as applicable) as a result of the Customer Content.

3.2.3 To comply with applicable laws and lawful governmental requests, to protect DNRA's Systems and DNRA's Customers, or to ensure the integrity and operation of DNRA's business and systems, DNRA may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (ie. name, e-mail address, etc.), IP addressing and traffic information, usage history, and the Customer Content residing on DNRA's Systems.


4 Fees and Payment Terms

4.1 The Customer agrees to pay to DNRA's then current set up and service fees in accordance with the Service Options and any and all costs and expenses incurred by DNRA in connection with the Services provided to the Customer by DNRA under this Agreement. For billing purposes, the service start date will be the date of the order. The Customer will be billed for (a) any setup fees; and (b) the annual fee for the Services at the rates and charges set out on the DNRA Web site at www.domainregistration.com.au. Henceforth, the Customer will be sent a renewal notice annually 30 days prior to the anniversary of the order. If the renewal fee is not paid by the anniversary of the order, the Services will be cancelled and the Customers web content and MX records deleted without notice.

4.2 All fees shall be payable within 14 days of issue of any invoice. All fees, including recurring fees, will be charged to the Customer's credit card of record unless other arrangements have been specifically approved by DNRA at DNRA's sole discretion. For billing purposes, fractions of units shall be rounded up. All charges are considered valid unless disputed in writing within 30 days of the invoice date. The Customer agrees to pay all dues with respect to the Services provided to the Customer, other than taxes based on DNRA’s net income. The Customer's failure to fully pay any fees and taxes on the applicable due date will be deemed a breach of this Agreement, justifying DNRA's suspension of its performance of the Services (including all e-mail and the deletion of the Customer Content) and, in DNRA's sole discretion, termination of this Agreement. Accounts in default are subject to an interest charge on the outstanding balance equal to the lesser of 10% per month . Any termination by DNRA for the Customer's failure to pay will not relieve the Customer from paying past due fees plus interest. In the event of collection enforcement, the Customer shall be liable for any costs associated with such collection, including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees.


5 Term of Service

5.1 The Agreement shall remain in full force and effect until terminated by either party. Either party may terminate this Agreement for any reason by providing the other party 7 days prior written notice; provided that, DNRA may immediately terminate or suspend the Services and this Agreement upon written notice for the Customer's or its users' violation of the Acceptable Use Policy. Upon any termination of this Agreement, DNRA will not refund, and the Customer is not eligible for, any remaining portion of any annual fee that already has been charged.

5.2 Should this Agreement be terminated for any reason, DNRA will not be liable to the Customer because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with the Customer's business, or for any other reason whatsoever flowing from such termination. The Customer is solely responsible for procuring any new or replacement service upon termination. Any termination of this Agreement shall not relieve the Customer of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by the Customer to DNRA as provided in this Agreement. Upon termination of this Agreement, the following sections shall survive and remain in effect in accordance with their terms: Sections 5.2 and 6 to 11 inclusive.


6 Reservation of Rights

DNRA is the exclusive owner of and retains all right, title and interest (including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights thereto (collectively, "Proprietary Rights")) to all materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by DNRA or its suppliers pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by DNRA to provide the Services to the Customer. The Customer is the exclusive owner of and retains all right, title and interest (including all Proprietary Rights) to the Customer Content. Note that DNRA does not guarantee retention of the Customer Content beyond 30 days after termination.


7 Warranties and Representations

7.1 The Customer represents, warrants and covenants to DNRA that: (a) the Customer Content or its use shall not violate, misappropriate or infringe any Proprietary Rights or any other personal, privacy or moral right arising under the laws of any jurisdiction of any person or entity, nor shall same constitute a libel or defamation of any person or entity; (b) the Customer Content will not contain any harmful components, including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs; (c) the Customer has all right, power and authority necessary to enter into this Agreement and use the Customer Content as described herein; and (d) the Customer shall comply with all applicable laws, rules and regulations (including, but not limited to, export control, decency, privacy and intellectual property laws).

7.2 DNRA exercises no control over, and accepts no responsibility for, third-party content of the information passing through DNRA's System, network hubs and points of presence, or the Internet. The Customer acknowledges that DNRA's systems (including any software and any other items used or provided by DNRA in connection with any services hereunder) are provided as represented at the execution of this Agreement. DNRA does not make any representations or warranties of any kind, express or implied, with respect to the performance of the services (including the DNS services therein) or DNRA's systems, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement or any implied warranty arising by usage of trade, course of dealing or course of performance. DNRA makes no representations or warranties whatsoever that the services and DNRA's systems will be uninterrupted, always accessible, free of harmful components, accurate or error-free.


8 Limitation of Liability

DNRA shall have no liability for any consequential, exemplary, special, incidental, or punitive damages even if DNRA has been advised of the possibility of such damages. In no event shall DNRA have any liability for unauthorised access to, or alteration, theft or destruction of information distributed or made available for distribution via the services through accident, fraudulent means or devices (including , without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information) . The total liability of DNRA to the Customer for any reason and upon any cause of action shall be limited to the amount actually paid to DNRA by the Customer under this Agreement during the 12 months immediately preceding the date on which such claim arose. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees for the services set by DNRA hereunder have been and will continue to be based upon this allocation of risk.

The Customer will have access to a variety of third party sources of content through the use of the Web site and the Internet. DNRA has made no effort to verify the accuracy of suitability of any information contained in any such sources, including, without limitation, any other web site that the Customer can link to from the Web site. Accordingly DNRA has no liability or responsibility whatsoever for any content provided by any other person contained on or available through the Web site. The Customer acknowledges and agrees that any access, use or reliance on any such third party content is at the Customer's own risk. The Customer acknowledges that, except for information, products or services clearly identified as being supplied by DNRA, DNRA does not operate, control or endorse any information, products or services of any other person on the Web site or the Internet in any way. The Customer also acknowledges and agrees that DNRA does not guarantee or warrant that files available for downloading from the Web site or through the Internet will be free of infection or viruses, worms, Trojan horses or other malicious code that may adversely effect the Customer, the Customer's computer or computer systems or the customer's data or files.


9 Indemnification

The Customer will indemnify, hold harmless, and defend DNRA and all employees, officers, directors and agents of DNRA and any of its affiliates from and against any and all claims, suits, actions, demands or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or relating to: (a) any violation or breach by the Customer of any term, representation or warranty, or policy of this Agreement; (b) the Customer's unlawful or improper use of the Services; (c) any damages caused to DNRA's Systems by the Customer Content; (d) any actual or alleged violation of any Proprietary Rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) by the Customer Content.


10 ARCHIVING OF DATA

DNRA will archive the Customer's data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, DNRA will restore from the last known good archive. In the event of corruption of all of DNRA's archives, or in the event that an old archive is used to restore data, the Customer should be prepared to upload its data to its web site. DNRA will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from DNRA backups.


11 Miscellaneous

11.1 This Agreement is governed by the law applicable in Terms and Services. The Customer and DNRA agree to irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts.

11.2 The Customer agrees that, unless other instructions are posted on DNRA’s web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail return receipt requested, in accordance with the most current contact information the Customer has provided to DNRA and the contact information for DNRA posted on DNRA’s web site. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission. Any failure by the Customer to update the Customer's e-mail address will not invalidate this provision. The Customer is solely responsible for ensuring that its Customer's contact details are current and correct, that its email services is operational and that it checks its emails regularly. The Customer must inform DNRA of any changes to its contact details by email to info@isolutionskenya.com as soon as possible. If DNRA sends an email to the Customer's current email address as listed in the Customer's contact details, the Customer is deemed to have received that email and DNRA is not obliged to take any further action to confirm that the Customer has received, opened and/or read the email unless the Customer promptly notifies DNRA that the email was not delivered to its email address. If DNRA receives an automated email non-delivery notification indicating that the Customer has not received the email that DNRA has sent the Customer regarding the Services, DNRA will use reasonable endeavours to attempt to contact the Customer using the other contact details the Customer submitted, including non-electronic means, but does not guarantee that DNRA will be able to contact the Customer.

11.5 Increased costs

(a) To the extent that any supply by DNRA under this Agreement is input taxed (input tax supply), DNRA is entitled to increase:

(i) any amount expressed as payable; and

(ii) anything else to be provided,

by the Customer for that input tax supply otherwise under or in connection with this agreement (consideration for the input tax supply) by:

(iii) such amount as DNRA determines in its discretion is reasonably necessary for DNRA to recover from the Customer (in addition to the consideration for the input tax supply) the amount of the input tax credits in relation to acquisitions made by DNRA and used by it wholly or partly in making the input tax supply, to which DNRA would have been entitled had the input tax supply been a taxable supply by DNRA; or

(iv) such lesser amount as DNRA determines.

11.6 Waiver of any provision of or right under this Agreement:

(a) must be in writing signed by the party entitled to the benefit of that provision or right; and

(b) is effective only to the extent set out in any written waiver.

11.7 In this agreement, except where the context otherwise requires:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d) a reference to $ is to US$ currency or Equivalent to Kenya Shillings;

(e) a reference to time is to American standard time;

(f) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(i) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;

(j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(k) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(l) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and

(n) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.

If the Customer has any questions relating to this Agreement, it may contact DNRA at info@isolutionskenya.com.

DNRA reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of DNRA's Systems. As described in the Hosting Agreement, DNRA reserves the right and has absolute discretion to (a) enforce this Policy and the terms of the Hosting Agreement and (b) remove or disable access, screen or edit any Customer Content that violates these provisions or is otherwise objectionable. Without limitation, DNRA also reserves the right to report any activity (including the disclosure of appropriate Customer information) that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. DNRA also may without limitation cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct or infringement of any third party's legal rights by providing network and systems information related to allegedly illegal, harmful, infringing or objectionable content. DNRA reserves all rights to identify the Customer by its IP address to third parties within the scope

 
Internet Solutions Kenya Email: info@isolutionskenya.com
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