Terms and Conditions1. SaaS Services and Support2. Restrictions and Responsibilities3. Confidentiality; Proprietary Rights4. Payment of Fees5. Term and Termination6. Warranty and Disclaimer7. Indemnity

Terms and Conditions

1. SaaS Services and Support

1.1 Provision of Services
Subject to the terms of this Agreement, Metro ICT will use commercially reasonable efforts to provide Customer with the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Metro ICT reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2 Technical Support
Subject to these terms, Metro ICT will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.

2. Restrictions and Responsibilities

2.1 Usage Restrictions
Customer will not, directly or indirectly:

  • Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”).
  • Modify, translate, or create derivative works based on the Services or any Software, except to the extent expressly permitted by Metro ICT or authorized within the Services.
  • Use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
  • Remove any proprietary notices or labels.

2.2 Export Restrictions
Customer may not remove or export from Kenya or allow the export or re-export of the Services, Software, or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of any applicable Kenyan or international authority.

2.3 Compliance with Laws
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Metro ICT’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Metro ICT against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Metro ICT has no obligation to monitor Customer’s use of the Services, Metro ICT may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer Equipment
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. Confidentiality; Proprietary Rights

3.1 Confidentiality
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Metro ICT includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Metro ICT to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

3.2 Ownership of Data
Customer shall own all right, title, and interest in and to the Customer Data. Metro ICT shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Data Use
Notwithstanding anything to the contrary, Metro ICT shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Metro ICT will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Metro ICT offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. Payment of Fees

4.1 Fees
Customer will pay Metro ICT the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Metro ICT reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).

4.2 Invoicing
Metro ICT may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Metro ICT thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than Kenyan taxes based on Metro ICT’s net income.

5. Term and Termination

5.1 Term
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 Termination for Breach
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Metro ICT will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Metro ICT may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. Warranty and Disclaimer

Metro ICT shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Metro ICT or by third-party providers, or because of other causes beyond Metro ICT’s reasonable control, but Metro ICT shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, METRO ICT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND METRO ICT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. Indemnity

Metro ICT shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any Kenyan patent or any copyright or misappropriation of any trade secret, provided Metro ICT is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Metro ICT will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Metro ICT, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Metro ICT, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Metro ICT to be infringing, Metro ICT may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights