1. Metro ICT & General Services, a Business under the Companies Act No. 17 0f 2015 of the laws of Kenya, having its Offices in Lydia Arcade, Suite 308, Nakuru Kenya. (“Metro ICT & General Services”); An 2. The Customer; a company, or its legal representative with a confirmation or order with Metro ICT & General Services for the lease of the service. (“Customer”);
The parties mentioned above hereinafter are also to be referred to as the “Parties” and each individually as a “Party”.
INTRODUCTION
Metro ICT & General Services, we understand that service interruptions impact the just-in-time delivery and user experience of instructions. That’s why Metro ICT & General Services puts great effort in delivering services with the highest standards in performance, reliability, and availability. Customers should be able to fully depend on Metro ICT & General Services for the creation and delivery of user guides and instructions. At Metro ICT & General Services, we understand that the business of Customers relies on us.
The Customer wants to use the Service provided by Metro ICT & General Services.
Metro ICT & General Services and the Customer have agreed to enter into this Software as a Service Agreement (the “SaaS Agreement”). The SaaS Agreement will hereafter govern Parties’ respective rights and obligations towards each other.
AGREEMENT:
DEFINITIONS
Applicable Laws: All statutes, laws, regulations, legislation, guidelines, ordinances, decrees, codes, and other legal requirements by any competent authority, together with any judgments, injunctions, orders, or other similar requirements of any competent court, administrative agency, or other legal adjudicatory authority, in effect at the time in question, which are applicable in Kenya and/or in respect of the provision of the Service and this includes but not limited to those relating to contraband or counterfeit products, anti-corruption, anti-bribery, anti-terrorism, conflicts of interest, economic sanctions and anti-boycott.
Competent Authority: Any national, federal, state, country, municipal, provincial, local, county, or other government or any department, commission, board, court, agency, committee, or quasi-governmental unit, including any utility board, local authority, or statutory or any other jurisdiction that may be applicable in the relevant context.
SaaS Agreement: This Software as a Service agreement.
SLA: The Service Level Agreement entered into by Metro ICT & General Services and the customer upon approval of the confirmation of order.
SLA Fee: The fee that the Customer must pay to Metro ICT & General Services for the use of the Software as provided in section 5 hereof.
Personal Information: Information or pieces of information that could (directly or indirectly) allow individual persons to be identified.
Software: The computer software offered by Metro ICT & General Services to the Customer including Source code, object code, netlists, design tools, user interfaces, applications, programming, interfaces, protocols, and formats.
Intellectual Property: All intellectual property and related proprietary rights, interests, and protections (including all rights to sue and recover and retain damages, costs, and attorneys' fees for past, present, and future infringement, including but not limited to copyrights, trademarks, service marks, tradename rights, (un)registered design rights, copyrights, database rights, patents, and patent applications, as well as all (enforcement) rights relating to domain names, trade secret rights, goodwill, know-how, computer software, source code and technical documentation, inventions, discoveries, specifications, developments, methods, algorithms and any other rights relating to any of the foregoing.
Data: All customized information which is made available by means of the feedback given by customers, questionnaires, default texts, messages to customers, follow up feedback, lists of users, reports, and evaluation, as well as all designs, logo’s, trademarks, and tradenames that Customer requests to incorporate in the visual appearance of the Software.
Force Majeure Event: Means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections and power failures).
Term: The Lease shall run for a period of 18 months commencing from the date of execution of the SLA.
2. USE OF SOFTWARE AND DURATION
Metro ICT & General Services gives the Customer during the Term of this Agreement the permission to make use of the Software under the terms in this Saas Agreement. This permission is non-exclusive and non-transferable.
Parties enter into this SaaS Agreement for the duration of 18 months. Please be referred to Clause 7 for the conditions on cancellation or termination of this Agreement.
The Customer will use the Software with the sole purpose of undertaking its ordinary course of business. In case the Customer would like to use the Software for other reasons, the Customer will be required to formally request a modification of the scope of use after obtaining written consent and approval from Metro ICT & General Services.
The Customer will get full access to the Software by means of the Internet obtained at the sole cost of the Customer.
The Customer, will not:
2.5.1 use the Software for any unlawful act;
2.5.2 create competing versions of the Software;
2.5.3 attempt to, directly or indirectly
(i) copy or republish the Software, (ii) make the Software subject to reverse engineering, (iii) lease, sub-license, encumber, lend, amend, merge into or with other software, decompile, disassemble, transfer, exchange, translate, hack, distribute or otherwise attempt to derive the source code, techniques, or other data or information comprising the Software or permit or induce the foregoing, or (iv) cause damage to or with the Software or in any other way abuse the Software.
2.6 In case Metro ICT & General Services has the reasonable suspicion that a user account of Customer has been used or is being used in violation of any user restriction provisions in this Clause or elsewhere in the SaaS Agreement, Metro ICT & General Services is allowed to immediately block such account or otherwise deny the Customer access to the Software in such manner as Metro ICT & General Services in its sole discretion deems appropriate. This does not affect the right of Metro ICT & General Services to attach other consequences mentioned in this SaaS Agreement or provided by law when the Customer is in violation of any user restriction provisions in this Chapter or elsewhere in the SaaS Agreement. The Customer acknowledges and agrees that Metro ICT & General Services will not be held liable in any manner for any loss or damages occasioned by it undertaking any action in accordance with this Clause.
3. OBLIGATIONS OF THE CUSTOMER
3.1 The Customer will provide Metro ICT & General Services with all the information and cooperation necessary for Metro ICT & General Services to perform the obligations under this SaaS Agreement. When the Customer does not provide the necessary information or cooperation, the Customer acknowledges that this can lead to delay in performance on the side of Metro ICT & General Services or failure of Metro ICT & General Services to meet the obligations under the SaaS Agreement.
3.2 The Customer is solely responsible for the procurement, technical operation, and maintenance of its internet connection, internal network, and all other systems that are relevant or necessary for undisturbed use of the Service.
3.3 The Customer undertakes that it shall comply with all Applicable Laws and it shall not and shall procure that none of its officers, agents, employees, or other representatives upload any inappropriate or obscene content. The Customer also undertakes to notify Metro ICT & General Services of the content of this nature. After this notification, Metro ICT & General Services will examine the content and reserves the right to remove it.
4. DATA, DATA PROCESSING AGREEMENT, ACCESS TO DATA
4.1 The Customer is the exclusive owner of all the Data that is collected, processed, and stored by means of the Software, and is the exclusive owner of all rights and claims associated therewith.
4.2 Customer is fully responsible for the accuracy, reliability, and quality of the Data and also carries the full responsibility that the collection, processing, and storage of the Data is in compliance with all Applicable Laws. The customer acknowledges that it acts as the “Controller” regarding the collection, processing, editing, and storage of the Data.
4.3 Metro ICT & General Services is not entitled to provide itself access to the Data unless it occurs at the express consent of the Customer or in the event that Metro ICT & General Services is required to provide (access to) the Data by any Competent Authority.
5. FEE
5.1 As compensation for the use of the Software and the services Metro ICT & General Services will receive a monthly fee as agreed with the Customer and payable in advance no later than the fifth (5th) day of each month (or as otherwise agreed with Customer in writing). All prices mentioned are net of any applicable taxes which costs shall be borne by the Customer and paid to Metro ICT & General Services in addition to the agreed monthly fee.
5.2 Customer will pay the fee under 5.1 in 1 term by means of a bank transfer (pre-payment or automated online payment). The bank details for Metro ICT & General Services will be provided to the client via Email;
5.3 If Customer fails to pay the agreed fees to Metro ICT & General Services in accordance with the applicable provisions, Metro ICT & General Services is entitled to deny Customer access to the Software, for example, by blocking user accounts provided to Customer or in such manner permissible by law or otherwise as Metro ICT & General Services in its sole discretion deems fit.
5.4 By giving at least [180] days’ notice, Metro ICT & General Services may modify and or increase the Fees as well as the scope of services provided from time to time (but not in the first year) and shall not be liable to the Customer or any third party for any modification, price change, suspension or discontinuation of service.
5.5 If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on no less than [30] days’ notice, provided the notice is received by the Chika before the effective date of the Fee increase. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
6. COMMISSIONS & TRANSACTION FEES
6.1 It is agreed and understood that all Card billing shall be to an account maintained and operated by Metro ICT & General Services on behalf of the Customer.
6.2 Metro ICT & General Services in consideration for operating the same shall be entitled to a commission for all card transactions on the Customer’s website at the rate of 2.5% per transaction.
6.3 Metro ICT & General Services shall also be entitled to a fixed sum of Kshs 35 (or for transactions in any currency other than K.Shs, 0.40$) Per transaction.
6.4 The Customer shall bear the charges for settling the amounts to the Customer’s account.
6.5 Metro ICT & General Services will settle all customer funds within the timeline agreed between the parties or failing such agreement within the ordinary time required to settle such funds and net of all charges (excluding the monthly agreed charge for using the platform)
6.6 Metro ICT & General Services will credit the customer account using details provided by the customer in the following format via Email
Account number …………………………… held at
Bank Name ……………………………………
Branch ………………………………….
Branch Code………………………..
Branch Address………………………….
Swift Code ………………………………..
Currency ………………………………………
OR Mpesa Till Number ……………… Paybill Number ……………………
OR at such other address or email as the Customer may hereafter specify for such purpose by notice in writing to Metro ICT & General Services
7. DURATION
7.1 This SaaS Agreement comes into effect on the date of a signature specified in the confirmation of order provided by the Customer (the “Start Date”) and shall continue for a period of 18 months (the “Initial Term”). During the Initial Term, termination is not possible. After the aforementioned Initial Term, the Agreement will continue for a further period of Eighteen (18) months, unless terminated as provided in clause 7.2.
7.2 Both parties shall be entitled to terminate this SaaS Agreement after the Initial Term has expired, during the subsequent Term, without liability, cost, or penalty on providing at least 30 days’ written notice to the other party, for any or no reason whatsoever.
7.3 If the SaaS Agreement is ended for any reason whatsoever under clause 7.2, Metro ICT & General Services will deny Customer access to the Software immediately after termination of the 30 day notice period and it shall not be liable to refund the Customer any amounts. However, if there are any outstanding Fees owing by the customer, the Customer will receive one final invoice via email. Once that invoice has been paid in full, the Customer will not be charged again
7.4 A Party may terminate this SaaS Agreement with immediate effect, without any notice being required and without being liable for any damages as a result of the termination, implying that Metro ICT & General Services is entitled to immediately deny Customer access to the Software, in case the other Party :
7.4.1 has been dissolved or liquidated or is in dissolution or liquidation.
7.4.2 has been granted suspension of payments; or
7.4.3 has been declared bankrupt; or
7.4.4 any procedure analogous to the actions stipulated in clauses 7.4.1, 7.4.2, and 7.4.3 is initiated or otherwise effected against the Customer.
7.5 Metro ICT & General Services reserves the right to modify or terminate the Service or the Customer Account for any reason, without notice at any time.
7.6 FRAUD
Without limiting any other remedies, Metro ICT & General Services may suspend or terminate any Customer account with access to the Software if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
8. INTELLECTUAL PROPERTY
8.1 Metro ICT & General Services is and remains the exclusive owner of all the current and future Intellectual Property Rights and other propriety rights vesting in and relating to the Software including all documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property Rights in connection with the Software.
8.2 Customer acknowledges that, under this SaaS Agreement, it will only be allowed to use the Software and will not and shall not make any claims to the before-mentioned Intellectual Property Rights
BETA SERVICES
From time to time, Metro ICT & General Services may, in its sole discretion, invite Customers to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Metro ICT & General Services will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered confidential information of Metro ICT & General Services (Metro ICT & General Services Confidential Information) and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without Metro ICT & General Services’ prior written consent. Chika makes no representations or warranties that the Beta Services will function. Metro ICT & General Services may discontinue the Beta Services at any time at its sole discretion. Metro ICT & General Services will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Metro ICT & General Services may change or not release a final or commercial version of a Beta Service at our sole discretion.
DCMA NOTICE AND TAKEDOWN PROCEDURE
Metro ICT & General Services supports the protection of intellectual property and asks Metro ICT & General Services merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Metro ICT & General Services’ designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter-notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter-notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise, we restore the material. For more information, see our DMCA Notice and Takedown Procedure.
During the course of your use of the Services, you may receive information relating to us, or to the Services, that is not known to the general public including information related to our security program and practices (“Metro ICT & General Services Confidential Information”). You agree that:
(a) Metro ICT & General Services Confidential Information will remain Metro ICT & General Services’ exclusive property;
(b) you will use Metro ICT & General Services Confidential Information only as is reasonably necessary for your use of or participation in the Services;
(c) you will not otherwise disclose Metro ICT & General Services Confidential Information to any third party, except that you may disclose to your affiliates, employees, subcontractors, and agents who, in each case, are subject to confidentiality obligations at least as protective of the Metro ICT & General Services Confidential Information as those contained in these Terms of Service; and
(d) you will take all reasonable measures to protect the Metro ICT & General Services Confidential Information against any use or disclosure that is not expressly permitted in these Terms of Service.
WHICH MEANS
If you receive Metro ICT & General Services Confidential Information you are required to protect it.
INDEMNIFICATION
The customer indemnifies Metro ICT & General Services for all third-party claims that relate to (the content of) the Data that the Customer collects, distributes, into, or processes by means of the Software, including at least the personal data that has been collected and processed by means of the Software.
LIABILITY
Metro ICT & General Services represents and warrants to Customer and acknowledges Customer is relying thereon on, that the Software will perform as stipulated.
Although the Service has been designed with the greatest care, Metro ICT & General Services does not guarantee that the Software will work perfectly and/or without omissions in all circumstances. Customer further acknowledges that the Software is provided over the internet, as well as by means of personal devices and/or technical infrastructure of Customer, and thus the quality and availability of the Software may be affected by factors outside Metro ICT & General Services’s reasonable control.
Metro ICT & General Services is not liable for any damage caused by the unprofessional use of the Software by the Customer, e.g. wrong instructions.
The customer is solely responsible for the content that is uploaded using the Software. Metro ICT & General Services is not responsible nor liable for any inappropriate or obscene content uploaded by the Customer.
Metro ICT & General Services is not liable for the incorrectness or incompleteness of the processed Data as mentioned in Clause 4.1 and is not liable for the application thereof.
Metro ICT & General Services is not liable for the Data provided by the Customer in relation to the Service.
If and in so far as Customer is to blame for failing to observe any of its duties, or is in breach of any of its representations and warranties provided in this SaaS Agreement, Customer is liable to Metro ICT & General Services for compensation for loss suffered or to be suffered by Metro ICT & General Services.
If a Force Majeure Event gives rise to failure or delay in either party performing any obligation under this SaaS Agreement, the Party whose performance of its obligations under the SaaS Agreement is affected by the Force Majeure Event will promptly notify the other Party. Metro ICT & General Services will be authorized to suspend its services fully for the duration of the Force Majeure Event. In case of suspension of services by Metro ICT & General Services attributable to a Force Majeure Event, Metro ICT & General Services will never be liable for any damages of Customer nor will Metro ICT & General Services be obliged to repay Customer a proportional part of the Fee. Metro ICT & General Services will resume its services as soon as possible.
If and in so far as Metro ICT & General Services is to blame for failing to observe any of its duties or is in breach of any of its representations and warranties provided in this SaaS Agreement, Metro ICT & General Services is only liable for the direct loss, whereby the maximum compensation for which Metro ICT & General Services may be held liable cannot exceed the value of the fees (excluding applicable taxes and other public authority charges) that Customer has actually paid and that Metro ICT & General Services has received for the acquisition of the right to use the Software.
Metro ICT & General Services will not be liable for any indirect arising to the Customer.
Any right from Customer to claim damages ceases when the Customer has not taken the measures necessary to mitigate the damage or to prevent further and/or other damage. This right will also cease if the Customer did not inform Metro ICT & General Services within 30 calendar days after noticing the damage and all relevant information thereto.
In the event that Metro ICT & General Services is held liable for any breach under this Agreement, it is hereby agreed that the liability of Metro ICT & General Services will not exceed the fees paid by the Customer under this Agreement during the 12 months preceding the date upon which the related claim arose.
CONFIDENTIALITY
The Parties are obliged to observe strict confidentiality concerning all confidential information with which the Parties or persons whose services they use in the fulfillment of this Agreement come into contact. Information is considered confidential if designated as confidential by the other Party or if confidentiality results from the nature of the information. In any event, confidential information includes “personal information” and all materials, documents, ideas, data, or other information that concerns the research and development, company secrets, or company information of the other Party.
The Parties and any person controlled by it may disclose information which would otherwise be confidential if and to the extent:
is or has become publicly known other than through a breach of this Clause;
was in possession of the receiving party prior to disclosure by the other party; or
was received by the receiving party from an independent third party who has full right of disclosure; or
was independently developed by the receiving party; or
was required to be disclosed by a Competent Authority, stock exchange, or regulatory body, provided that the party subject to such requirement to disclose gives the other Party prompt written notice of the requirement.
The termination of this Agreement for whatever reason shall not affect the provisions of this section 14 which shall survive in the event of the termination of this Agreement.
MISCELLANEOUS
If any provision of this Agreement shall be held by any court of competent jurisdiction to be invalid or unenforceable;
the invalidity or unenforceability of such provision shall have no effect upon and shall not impair the validity and enforceability of any other provision of this Agreement; and
Parties shall reach an agreement on the replacement of the invalid and/or unenforceable provision by a valid and enforceable provision that complies – as much as possible – with the objectives of the Parties as expressed in this Agreement.
This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assignees.
No Party hereto may assign this Agreement or any part thereof without the prior written consent of the other Party hereto. Subject to the foregoing, this Agreement shall endure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns, as applicable.
No variation shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy
GOVERNING LAW AND JURISDICTION
This Agreement shall only be governed by and construed in accordance with the laws of Kenya.
All disputes arising out of or in connection with this Agreement, including disputes concerning the existence and validity thereof, shall be exclusively submitted to the competent court in Kenya.
Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures on the contract form that will be shared by Metro ICT & General Services via Email.
If you have questions or comments about this agreement, contact us using the information provided on this website