(A) The following are the General Terms and Conditions between Kwaduara Limited (Kwara) and the savings and credit cooperatives (SACCOs) and/or Credit Unions (the Customer) licensed by Kwara to use the Kwara SACCOs Mobile Banking Software and/or the Kwara SACCOs Operations Management Software Solution.
(B) Kwara may amend and/or vary these Kwara Software General Terms and Conditions and any amendments and/or variations thereto shall be published on the Kwara website and shall take effect on the date of the publication or as otherwise provided in such amendment or variation.
(C) By signing a license agreement that incorporates these Kwara Software General Terms and Conditions by reference and/or by the Customer continuing to use the Kwara Software (as hereinafter defined) the Customer shall be deemed to have read, understood and agreed to abide by these Kwara Software General Terms and Conditions and any amendments and/or variations thereto. If a term is relevant only to the usage of a specific Kwara product or software, that term shall only apply to that particular product or software.
NOW THESE KWARA SOFTWARE GENERAL TERMS AND CONDITIONS witnesseth as follows:
1.1. In these Kwara Software General Terms and Conditions, the following terms shall have the following meaning ascribed to them:
1.1.1. Account Holder means the registered members of the Customer (as hereinafter defined);
1.1.2. Business Day means any day (other than Saturday, Sunday, national day or gazette public holiday in Kenya) on which banking institutions in Kenya are generally open for the conduct of banking business;
1.1.3. Customer means any savings and credit cooperatives (SACCOs) and/or credit unions licensed by Kwara to utilize the Kwara Software;
1.1.4. Force Majeure Event has the meaning ascribed to it in clause 9.1;
1.1.5. Intellectual Property has the meaning ascribed to it in clause 13.1.3;
1.1.6. Kwara Connect means the product developed and offered by Kwara to the Customers to enable the Account Holders to undertake various online and mobile banking transactions including but not limited to viewing account balances, receiving real time transaction updates, downloading statements, making deposits, making withdrawals, and undertaking digital loan applications;
1.1.7. Kwara Channels means the transactional mediums provided by Kwara to the Customer for use by the Account Holders to inter alia view account balances, receive real time transaction updates, download statements, make deposits, withdrawals, and digital loan applications, including but not limited to unstructured supplementary service data (USSD), mobile banking app, portal, online banking and agency banking;
1.1.8. Kwara Revenue Share means the agreed proportion of the Transaction Fees payable by the Customer to Kwara with respect to the use of Kwara Connect by the Account Holder;
1.1.9. Kwara Products means any products or services offered by Kwara to the Customer and/or the Account Holders;
1.1.10. Kwara Software means a cloud-based SACCO Operations Management Solution including its integrated tools tailored to drive operational efficiency of SACCOs and credit unions through digital management of front and back office administrative functions including but not limited to customer relationship management, deposits and loan account management, teller, vault and cash management, loan process automation, accounting and reporting, credit referencing and fraud prevention;
1.1.11. Kwara Software General Terms and Conditions means these Kwara Software General Terms and Conditions as amended and/or varied from time to time;
1.1.12. Licence Agreement means the licence agreement executed between Kwara and the Customer, as amended and/or varied from time to time, incorporating these Kwara Software General Terms and Conditions;
1.1.13. Marketing Information has the meaning ascribed to it in clause 2.4;
1.1.14. Material means any systems, equipment, hardware, software, literary works, specifications, design documents, processes, methodologies, programs, program listings, programming tools, documentation, data bases, reports, drawings and other items or work products and other tangible or intangible assets to be used with respect to the Kwara Software and the term Materials shall be construed accordingly; and
1.1.15. Subscription Fee means the fee payable by the Customer to Kwara with respect to the Kwara Software pursuant to the Licence Agreement;
1.1.16. Term means the term of the Licence Agreement; and
1.1.17. Transactional Fees means the charges levied by the Customer on the Account Holder with respect to the transactions undertaken on Kwara Connect.
1.2. Unless the context otherwise requires, in these Kwara Software General Terms and Conditions (including the Recitals):
1.2.1. words denoting the singular number shall include the plural and vice versa and reference to the masculine includes a reference to the feminine gender and neuter and vice versa and words importing the whole shall be treated as including a reference to any part thereof;
1.2.2. a person includes a natural person, corporate or unincorporated body, state agency, governmental authority or firm (whether or not having separate legal personality) and that person's personal representatives or successors (as the case may be) or permitted assigns;
1.2.3. references to indemnifying any person against any circumstance includes indemnifying and keeping that person harmless from any actions, claims and proceedings from time to time made against that person and all proven direct loss or damage and all payments, liabilities, costs or expenses made, incurred or suffered by that person as a consequence of or which would not have arisen but for that circumstance, provided always that no indemnification shall apply in respect of any loss of profits, goodwill or business or any other indirect or consequential losses;
1.2.4. the expression Party shall mean each of Kwara and the Customer, and Parties shall be construed accordingly;
1.2.5. clauses headings are inserted for convenience only and shall not affect the interpretation or construction of these Kwara Software General Terms and Conditions;
1.2.6. unless the context otherwise requires, a reference to any Party shall include that Party's successors and permitted assigns;
1.2.7. a reference to writing or written includes e-mail;
1.2.8. any obligation on a Party not to do something includes an obligation not to agree or allow that thing to be done by another person so far as this is within that Party’s power or control;
1.2.9. a reference to these Kwara Software General Terms and Conditions or to any other terms and conditions, agreement or document referred to in these Kwara Software General Terms and Conditions is a reference to these Kwara Software General Terms and Conditions or such other terms and conditions, agreement or document as varied or novated (in each case, other than in breach of the provisions of these Kwara Software General Terms and Conditions, and in accordance with the law to which those terms and conditions, agreement or document are subject and the particular conditions (if any of such terms and conditions, agreement or document) from time to time;
1.2.10. references to clauses are to be construed as references to the clauses to these Kwara Software General Terms and Conditions; and
1.2.11. Unless the context otherwise requires, any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. The Use of Kwara Software and Kwara Products
2.1. Kwara has entered into a license agreement with the Customer pursuant to which it has granted the Customer a personal, limited, revocable, non-transferrable and non-exclusive right to use the Kwara Software to facilitate the efficient management of the Customer’s business operations through its key products namely the Kwara Core, Kwara Connect and Kwara Open in accordance with the provisions of the License Agreement and this Kwara Software General Terms and Conditions.
2.2. The use of the Kwara Software and the Kwara Products by the Customer shall be restricted to the manner authorised by Kwara for purposes of processing and controlling the Account Holder’s data and information for the Customer’s normal operation purposes (which shall not include allowing the use of the Software by, or for the benefit of any other person other that the Customer and the Customer’s authorised employees and Account Holders).
2.3. Any samples or advertisements issued by Kwara and any descriptions of the Kwara Software and the Kwara Products contained in Kwara’s brochures, marketing materials, press releases, website, pitch presentations, profile and/or website (the Marketing Information) are issued or published for the sole purpose of giving an approximate idea of the Kwara Software. The Marketing Information shall not form part of the Licence Agreement and these Kwara Software General Terms and Conditions nor have any contractual force.
2.4. The Customer hereby agrees and undertake that it shall not undertake or permit any third party to undertake any of the following:
2.4.1. access or attempt to access the Kwara Software’s systems, programs or data that are not made available for public use;
2.4.2. copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the Marketing Information;
2.4.3. permit any unauthorised third party to use and benefit from the use of the Kwara Software and/or the Kwara Products other than the Customer’s authorized employees/personnel and the Account Holders;
2.4.4. transfer any rights granted to the Customer under the Licence Agreement;
2.4.5. work around any of the technical limitations of the Kwara Software, use any tool, except tools provided by Kwara, to enable features or functionalities that are otherwise disabled in the Kwara Software, or decompile, disassemble or otherwise reverse engineer the Kwara Software;
2.4.6. intentionally perform or attempt to perform any actions that would interfere with the proper working of the Kwara Software, prevent access to or use of the Kwara Software by any of the Account Holders, or impose an unreasonable or disproportionately large load on the Kwara Software; or
2.4.7. otherwise use the Kwara Software and/or Kwara Products except as expressly allowed under the Licence Agreement; or
2.4.8. use the Kwara Software and/or Kwara Products to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights or use the Kwara Software to store or transmit malicious code;
2.4.9. interfere with or disrupt the integrity or performance of the Kwara Software or third-party data contained therein; or
2.4.10. attempt to gain unauthorised access to any of Kwara’s Material.
2.5. Third party softwares:
2.5.1. Kwara and Kwara’s personnel may from time to time recommend third party software or other products and services for the Customer’s consideration. Kwara makes no representation or warranty whatsoever regarding such third party products and services.
2.5.2. The Customer’s use of any products and services not provided by Kwara is governed by the terms of the Customer’s agreement with the provider of those products and services, and is at the Customer’s sole risk. Kwara is not responsible in any way for the third party product and services performance, features or failures.
2.6. Suspension of the Kwara Software:
2.6.1. Kwara may suspend the Kwara Software and/or Kwara Products at any time without liability if:
22.214.171.124. Kwara reasonably believes that the Customer or Account Holders are using the Kwara Software or any of the Kwara Products in breach of the Licence Agreement and/or these Kwara Software General Terms and Conditions;
126.96.36.199. the Customer fails to cooperate with Kwara's reasonable investigation of any suspected violation of the Licence Agreement or these Kwara Software General Terms and Conditions;
188.8.131.52. Kwara reasonably believe there is an attack on the Customer's or Account Holders Material in relation to the Kwara Software and/or Products, which is accessed or manipulated by a third party without Kwara's consent;
184.108.40.206. Kwara is required by law or a regulatory or government body to suspend the Kwara Software; or
220.127.116.11. If Kwara reasonably believe that the suspension of Kwara Software and/or Kwara Products is necessary to protect the Kwara Software or the Customer and Account Holders.
2.6.2. Kwara will give the Customer advance notice of any suspension under this clause at least twelve (12) hours in advance, if practical, but if not practical, Kwara may suspend the Kwara Software without prior notice. Notwithstanding the foregoing, Kwara may determine, in Kwara's reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Kwara Software or Kwara's clients from imminent and significant operational, legal, or security risk. Kwara shall resume providing the Kwara Software to the Customer as soon as the above mentioned reasons for suspension cease to exist.
3. Access and Use of Kwara Connect
3.1. The following constitute the use of access credentials and communication devices security procedures established by Kwara to authenticate the identity of users attempting to gain access to Kwara Connect (the Security Procedures):
3.1.1. the Customer hereby acknowledges and agrees that the Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with the Security Procedures (the Security Devices), constitute commercially reasonable security procedures under applicable law for the initiation of transfers and access to confidential customer information and hereby agrees and undertakes to comply with the Security Procedures as prescribed by Kwara from time to time;
3.1.2. the Customer agrees to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to their authorized representative(s). The Customer agrees not to disclose or provide any Security Procedures or Security Devices to any unauthorized person. Kwara personnel will never ask the Customer to provide or disclose the Security Procedures and Security Devices to Kwara or to a third party;
3.1.3. Where the Customer has the ability to change or modify a Security Device from time to time (e.g., a password or User Name), they agree to change Security Devices frequently in order to ensure the security of the Security Device. The Customer agrees to notify Kwara immediately, according to notification procedures prescribed by Kwara, if the Customer believes that any Security Procedures or Security Device have been stolen, compromised, or otherwise become known to persons other than the Customer or the Customer’s authorized representative(s) or if the Customer believes that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, Kwara may establish new Security Procedures as soon as reasonably practicable, but Kwara shall not be liable to the Customer or any third party for any delay in taking such actions;
3.1.4. Kwara may require the Customer to rotate API keys to third party integrations from time to time for security reasons and the Customer hereby agreed and undertakes to comply with such requests;
3.1.5. The Customer agrees to be responsible for ensuring all application programming interface (API) keys to third party integrations such as M-PESA, Credit Reference Bureau (CRB), and any other integrations are only provided to Kwara via a single agreed upon secure channel. The Customer is responsible for ensuring the same keys are stored in a secure location, away from unauthorised access;
3.1.6. The Customer authorizes Kwara to follow any and all instructions entered and transactions initiated using the applicable Security Procedures unless and until the Customer has notified Kwara, according to notification procedures prescribed by Kwara, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than the Customer or the Customer’s representative(s) and until Kwara has had a reasonable opportunity to act upon such notice;
3.1.7. The Customer agrees that the initiation of a transaction using applicable Security Procedures constitutes sufficient authorization for Kwara to execute such transaction notwithstanding any particular signature requirements identified on any signature card or other documents relating to accounts maintained with Kwara, and the Customer agrees and intends that the submission of transactions and instructions using the Security Procedures shall be considered the same as written signature in authorizing Kwara to execute such transaction;
3.1.8. The Customer acknowledges and agrees that the Customer shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by the Customer or the Customer’s employees and agents, to the fullest extent allowed by applicable laws. The Customer further acknowledges and agrees that the Security Procedures are not designed to detect error in the transmission or content of communications or transactions initiated by the Customer and that the Customer bears the sole responsibility for detecting and preventing such error; and
3.1.9. Kwara reserves the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Device, at any time and from time to time at Kwara’s sole discretion. Kwara will endeavour to give the Customer reasonable notice of any change in Security Procedures; provided that Kwara may make any change in Security Procedures without advance notice to the Customer if Kwara, in its own judgment and discretion, believe such change to be necessary or desirable to protect the security of the Kwara MB Software, Kwara’s systems and assets. The Customer’s implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute the Customer’s agreement to the change and the Customer’s agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.
3.2. In consideration of Kwara complying with instructions or requests initiated through the Security Procedures, the Customer hereby undertakes to indemnify Kwara and hold Kwara harmless on a full and unqualified indemnity basis against any loss, charge, damage, expense, fee or claim which Kwara suffers or incurs or sustains thereby and the Customer absolves Kwara from all liability for loss or damage which the Customer may sustain from Kwara acting on instructions or requests initiated in accordance with these Kwara Software General Terms and Conditions.
4. Kwara’s Obligations
4.1. For the duration of the Term and subject to the fulfilment of the Customer’s payment obligations as set forth in the License Agreement and the Kwara Software General Terms and Conditions, Kwara hereby agrees and undertakes to:
4.1.1. grant the Customer the non-exclusive right to use the Kwara Software and the Kwara Products. Kwara shall use commercially reasonable efforts to make the Kwara Software and Kwara Products available to the Customer uninterrupted. Notwithstanding the foregoing, Kwara shall not be liable to the Customer for any interruption of the use of the Kwara Software and/or the Kwara Products occasioned by the following:
18.104.22.168. a planned downtime, scheduled preventive, curative maintenance or emergency system maintenance. Kwara will endeavour to give, where practical, a minimum of six (6) hours’ prior notice or such other reasonable period as may be practical in the circumstances. Kwara further endeavours to undertake its scheduled preventative and scheduled maintenance occur during non-peak hours, and at such times, real time updates will be made available via the webpage status.kwara.com; and
22.214.171.124. the occurrence of a Force Majeure Event. Kwara hereby undertakes to use its best endeavours to re-establish the services as promptly as possible.
4.1.2. provide basic technical support to the Customer and/or the Account Holder with respect to the use of Kwara Software and the Kwara Products at no additional costs.
5. The Customer’s Obligations
5.1. The Customer hereby unequivocally, unconditionally and irrevocably agrees to:
5.1.1. promptly remit the Subscription Fee and the Kwara Revenue Share in the manner agreed between the Kwara and the Customer;
5.1.2. use the Kwara Software and the Kwara Products strictly in accordance with the Licence Agreement, these Kwara Software General Terms and Conditions and the applicable laws regulations;
5.1.3. cooperate with Kwara with respect to Kwara fulfilling any of Kwara’s obligation under the Licence Agreement or these Kwara Software General Terms and Conditions;
5.1.4. provide Kwara with reasonable access to all necessary Customer’s support personnel, and ensure that such personnel are technically qualified (including but not limited to being qualified academically and possession the requisite skills, experience and competence);
5.1.5. provide Kwara with reasonable access to the Customer’s relevant facilities, premises, servers (both onsite and offsite), devices, computers, network, equipment, components, hardware and software as and when required by Kwara;
5.1.6. report any defects or malfunctions in the Kwara Software through the designated support intake channel; and
5.1.7. ensure that the Account Holder’s data and information is handled in compliance with the relevant data privacy regulations.
5.2. The Customer shall:
5.2.1. be responsible for the accuracy, quality and legality of the Customer's and Account Holders data and shall ensure that such data is obtained and handled in accordance with the applicable laws; and
5.2.2. use commercially reasonable efforts to prevent unauthorised access to or use of the Kwara Software and Kwara Products. The customer hereby undertakes to promptly notify Kwara of any such unauthorised access or use;
6. Data Protection and return of information
6.1. Kwara may control and process the Customer’s and Account Holder’s personal data and information and the Customer may control and process the Account Holder’s personal data and information with respect to:
6.1.1. the Customer or Account Holders accessing the Kwara Software and/ or the Kwara Products; and
6.1.2. the Customer or Account Holders registering themselves in the Kwara Software or subscribing thereto.
6.2. Kwara may use the Customer’s and/or the Account Holder’s personal data and/or information for the following purposes:
6.2.1. pre-training and full training of Kwara’s and/or the Customer’s operation staff on the day to day use of the Kwara Software;
6.2.2. supporting the Customer in extracting missing or incorrect data;
6.2.3. importing the Customer’s or Account Holders information into the sandbox and production environment;
6.2.4. billing the Customer or the Account Holders for the use by the Customer and/ or Account Holders of the Kwara Software;
6.2.5. verifying the Customer’s and/or Account Holders’ personal data and/or information through the available government databases in order to comply with any legal and/or regulatory requirements;
6.2.6. keeping the Customer and/or Account Holders informed of any new product that Kwara might develop;
6.2.7. in business practices including quality control, training and effective Software operations;
6.2.8. preventing and detecting fraud and other crimes; and
6.2.9. administer the Kwara Software and/or Kwara Products.
6.3. The Customer shall be solely responsible for procuring the Account Holders consent with respect to Kwara processing and controlling the Account Holders personal data and information. The Customer hereby unequivocally, irrevocably and unconditionally grants Kwara the permission to process the Customer and the Account Holders’ personal data and information with respect to the Kwara Software and the services to be provided by Kwara to the Customer herein.
6.4. The Customer shall ensure that it informs the Account Holders of their rights with respect to the Account Holders’ personal data and information, including:
6.4.1. informing the Account Holders of the use to which the Account Holders’ personal data is to be put;
6.4.2. the Account Holders accessing the specific Account Holders’ personal data in custody of the Customer;
6.4.3. the Account Holder objecting to the processing of all or part of the Account Holder’s personal data;
6.4.4. correction of the Account Holders false or misleading data (if any); and
6.4.5. deletion of false or misleading data about the Account Holders.
6.5. The Parties shall always ensure that in processing the Account Holders’ and each other’s personal data:
6.5.1. they act in accordance with the right to privacy of the data subject;
6.5.2. they process such personal data lawfully, fairly and in a transparent manner;
6.5.3. such data is collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes;
6.5.4. such data is adequate, relevant, limited to what is necessary in relation to the purposes for which it is processed;
6.5.5. the data is collected only where a valid explanation is provided whenever information relating to family or private affairs is required;
6.5.6. such data is accurate and, where necessary, kept up to date, with every reasonable step being taken to ensure that any inaccurate personal data is erased or rectified without delay;
6.5.7. such data is kept in a form which identifies the data subjects for no longer than is necessary for the purposes which it was collected; and
6.5.8. the personal data is not transferred outside Kenya, unless there is proof of adequate data protection safeguards or consent from the data subject.
6.6. The Parties may have a respective designated data protection officer within their organisations, possessing the requisite qualifications which may include knowledge and technical skills in matters relating to data protection. Such data protection officers shall:
6.6.1. advise Kwara and the Customer and their respective employees on data processing requirements;
6.6.2. facilitate capacity building of each of the Parties’ employees involved in data processing and controlling operations;
6.6.3. ensure that each of Kwara and the Customer comply with data protection legislation and all applicable laws thereof;
6.6.4. provide advice on data protection impact assessment; and
6.6.5. co-operate with any authority on matters relating to data protection.
6.7. The Parties shall retain the data subject’s personal data only as long as may be reasonably necessary to satisfy the purpose for which it is processed unless the retention is:
6.7.1. required or authorised by law;
6.7.2. reasonably necessary for a lawful purpose;
6.7.3. authorised or consented by the data subject; or
6.7.4. for historical, statistical, journalistic literature and art or research purposes.
6.8. The Parties shall delete, erase, anonymise or pseudonymise the data subject’s personal data not necessary to be retained in a manner as may be specified at the expiry of the retention period.
7. Exclusion of liability
7.1. Usage limitations: The Kwara Software and/or Kwara Products may be subject to certain limitations, including but not limited to limits on the number of users who can access the Kwara Software concurrently. The Customer shall always comply with Kwara Software’s usage limitation, as may be advised by Kwara from time to time.
7.2. Kwara shall in no case be responsible towards the Customer and/or Account Holders for damages to or loss of data, information or other content in the course of use of the Kwara Software by the Customer and/or Account Holders, save where any such loss is caused due to Kwara's proven gross negligence.
7.3. The Customer understands and agrees that Kwara is a service provider of information technology services and that Kwara may not audit, select or modify the information contained in these transmissions, except as required by law. In the event that a Court of competent jurisdiction makes any award of damages against Kwara (and/or Kwara's officers, employees, affiliates and their agents) with regard to a copyright infringement or any type of intellectual property claim, defamation claim, claim of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material and/or claim of infringement of data protection, privacy, criminal or other legislation attributable to any fault on the part of the Customer, Account Holders or the Customer's employees, agents, contractors, its customers or other third parties claiming under the Customer, then the Customer agrees to fully indemnify and hold harmless Kwara, Kwara’s officers, employees, affiliates and agents from and against any such damage and/or any costs or expense incurred in connection therewith.
7.4. Kwara gives no representation and/or warranties with respect to the following:
7.4.1. Kwara does not promise and/or warrant that the Kwara Software will be not have interruptions, be error-free, or completely secure. The Customer hereby acknowledges that there are risks inherent in internet connectivity that could result in the loss of the Customer’s and Account Holder’s privacy, confidential information, property, revenue and profit.
7.4.2. Implied and non-implied Warranties: Kwara disclaims any and all warranties not expressly stated in these Kwara Software General Terms and Conditions to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. The Customer is solely responsible for the suitability of the Kwara Software.
7.5. The Customer shall be responsible for understanding the regulatory requirements applicable to the Customer’s business and for selecting and using the Kwara Software in a manner that complies with the applicable requirements.
7.6. The Kwara Software and Kwara Products is provided on an ‘as is’ and ‘as available’ basis. Use of the Kwara Software and/or Kwara Products is at the Customer’s own risk. To the maximum extent permitted by applicable law, Kwara make no representations or warranties of any kind, express or implied, statutory or otherwise, and Kwara specifically disclaims any warranties of non-infringement or fitness for a particular purpose.
7.7. Under no circumstances shall either Party be liable to the other Party for indirect, consequential, incidental, special or exemplary damages (even if that Party has been advised of the possibility of such damage). Kwara shall not be held liable in connection with the disputes and disagreements arising between the Customer and the Account Holders in all cases where such disputes and disagreements are not related to the subject of the Licence Agreement, or in connection with disputes and disagreements over the quality, volume and timeliness of provision of the Customer’s products to the Account Holders.
8. Limitation of liability
8.1. In no event shall Kwara’s liability to the Customer under the Licence Agreement and these Kwara Software General Terms and Conditions be more than the aggregate amount of Subscription Fee to be received by Kwara from the Customer under the Licence Agreement during the Term or in the event that there will be no definite Subscription Fee to be received by Kwara from the Customer under the Licence Agreement during the Term as contemplated above, then in no event shall Kwara’s liability to the Customer be more than Kenya Shillings One Hundred Thousand (K.Shs.100,000.00) or its equivalent in any other currency.
9. Taxes on Subscription Fee
9.1. Unless otherwise expressly provided in the Licence Agreement, all amounts due to Kwara under the Licence Agreement are exclusive of any value added, goods, services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, Tax). If Kwara is required by law to collect any Tax with respect to the Kwara Software and/or Kwara Products, Kwara will invoice the Customer for such Tax and the Customer must pay Kwara the amount of the Tax that is due or provide Kwara with satisfactory evidence of the Customer’s exemption from the Tax. The obligation to pay any Tax that the Customer may be required to pay in connection with the Customer’s use of the Kwara Software or the Customer’s payment of amounts due to Kwara under the Licence Agreement shall be borne exclusively by the Customer. The Customer shall provide Kwara with accurate factual and adequate information and documentation (as determined by Kwara), to enable Kwara determine and ascertain if any Tax is due with respect to the Kwara Software and the Tax amount involved.
9.2. If the Customer is obliged to deduct any amount from the amount due to Kwara from the Customer on account of withholding tax or any other such tax, then the Customer shall top up such amount so that net amount received by Kwara on account of the Subscription Fee is as if no amount was deducted on account of such tax.
9.3. The Customer hereby undertakes to declare all income and sales taxes resulting from or in consequence of using the Kwara Software and/or Kwara Products to the relevant tax authority and to pay all taxes levies and fees due on such income. Kwara shall not be liable to the Customer for any disclosure made to the relevant tax authority and the Customer shall indemnify Kwara from any loss, harm or damage arising from such disclosure to the relevant taxing authority. It is the Customer’s responsibility to determine what, if any, taxes apply to the payments the Customer receives and to collect, report and remit the correct tax to the relevant taxing authority. Kwara shall not be obligated to determine whether taxes apply, and Kwara shall not be responsible for collecting, reporting, or remitting any taxes arising from any transaction, unless the Parties agree otherwise in writing.
10. Force Majeure
10.1. Either Party shall be relieved of its liability for partial or total non-performance of obligations hereunder (except financial obligations), if such non-performance is due to force majeure circumstances which the affected Party could not reasonably anticipate and prevent. Such force majeure circumstances include natural calamities, acts of God, accidents, war, fires, public disorders, walkouts, revolutions, pandemics, lockdown, shortage of labour, hostilities, legislative acts, government action, government orders and directives of the authorities (Force Majeure Event), which directly or indirectly affect the availability or usage of the Kwara Software, as well as any other circumstances beyond the Parties' reasonable control. In the event of such circumstances, the timeframe for performing contractual obligations hereunder shall be extended for the duration of the relevant circumstances.
10.2. In the event of a Force Majeure Event, the affected Party shall notify the other Party in writing within twenty four (24) hours of the occurrence of such Force Majeure Event. The notice shall contain information about the nature of the circumstances in as much detail as possible and, if possible, an assessment of the Party’s impact on the possibility to perform that Party’s obligations hereunder and expected timeframe during which they can be performed.
10.3. The Party affected by a Force Majeure Event shall use its best endeavors to mitigate the effects of the Force Majeure Event. If a Force Majeure Event continues for a continuous period of over thirty (30) days, the other Party may terminate the Licence Agreement upon giving the Party affected by the Force Majeure Event, fifteen (15) days prior written notice to that effect.
11.1. Each Party hereby undertakes to the other Party that it shall procure that all persons controlled by it shall at all times hereafter (save with the prior written consent of the other Party) treat as strictly confidential and shall not disclose to any third party any information concerning the existence of the Licence Agreement and these Kwara Software General Terms and Conditions.
11.2. The Parties shall not disclose information obtained in the course of performing their respective obligations under the Licence Agreement and these Kwara Software General Terms and Conditions, including information that constitutes any trade or commercial secret of either Party and any other information which disclosure may cause loss or damage the business reputation of either Party or any information relating to the other Party obtained as a result of entering into this Agreement, provided that a Party and any person controlled by it may disclose information which would otherwise be confidential if and to the extent:
11.2.1. required by law;
11.2.2. required by any competent tax authority, regulatory or governmental body, or agency or person to which such Party is subject or submits (wherever situated);
11.2.3. the information has come into the public domain through no fault of that Party; or
11.2.4. disclosed to professional advisers of such Party who will in turn be bound by the provisions of this clause 10.
11.3. Upon written request of the disclosing Party at any time during the Term or upon termination of the Licence Agreement, the receiving Party shall, at the option of the disclosing Party:
11.3.1. promptly return all confidential information, documents, data and/or other information (or the part thereof required in such request) (including copies) to the disclosing Party in a format and/or on media reasonably requested by the disclosing Party; or
11.3.2. destroy or delete that confidential information, documents, data and other information (including copies) in the manner specified by the disclosing Party (other than such copies required to be kept by the receiving Party by law) and promptly certify to the disclosing Party in writing that it has done so,
provided, however, that the receiving Party may retain, in the sole custody of its legal counsel, certain categories of confidential information, documents, data and other information identified to the requesting Party and which are reasonably necessary to substantiate compliance with the Licence Agreement or these Kwara Software General Terms and Conditions or otherwise required for financial, operational and/or auditing purposes. Any such items will remain subject to the confidentiality obligations in this clause 10. When such retained information is no longer reasonably required, it shall be, according to the instruction received in that behalf, either returned to the disclosing Party or destroyed, with written certification thereof being given to the disclosing Party.
11.4. The termination or expiry of the Term for whatever reason shall not affect the provisions of this clause 10 which shall survive the termination or expiry of the Term.
12.1. At any time during the Term, either Party may terminate the Licence Agreement without cause or for convenience by sending the other Party at least three (3) months prior written notice.
12.2. Either Party may terminate the Licence Agreement in the event the other Party materially breaches any of its obligations hereunder and if such breach is capable of being cured, fails to cure such breach within fifteen (15) days after receipt of a written notice from the non-breaching Party specifying such breach in reasonable detail. In the case of breach incapable of being cured, the non-breaching Party may terminate the Licence Agreement immediately upon giving the breaching Party written notice.
12.3. The Licence Agreement may also be terminated in the event of a Force Majeure Event as stipulated in clause 9.3.
12.4. Notwithstanding any provision of the Licence Agreement, Kwara shall be entitled to suspend Kwara Software in its sole discretion in any of the following cases:
12.4.1. the Customer fails to pay the Subscription Fee as and when due;
12.4.2. the Customer fails to pay any other fee payable by the Customer to Kwara;
12.4.3. the Customer breaches any term and/or condition of the Licence Agreement or these Kwara Software General Terms and Conditions; or
12.4.4. the Customer misuses or allows unauthorised access to the Kwara Software.
12.5. Kwara shall inform the Customer about such suspension of the Kwara Software and Kwara’s reasons for such suspension and give the Customer a definite period for the Customer to remedy the breach. Kwara shall be entitled to terminate the Licence Agreement if the Customer does not cure the breach within such period, without prejudice to any rights that may have accrued to Kwara.
12.6. In the event of termination, the Parties shall perform all mutual settlements and payments in full immediately on the date of termination.
12.7. Termination shall not relieve either Party of obligations incurred prior thereto including all payment obligations under the Licence Agreement.
12.8. Upon termination of the Licence Agreement, the Customer shall purge from Kwara Software and/or Kwara Products all the Customer’s and Account Holders data within fifteen (15) days. After the fifteenth (15th) day after the termination date, Kwara will be released from all obligations to protect the Customer's and Account Holder’s data.
12.9. Effect of termination: In the event that the Licence Agreement and these Kwara Software General Terms and Conditions are terminated, the following shall be the consequences:
12.9.1. unless otherwise agreed in writing by the Parties, all or any sums payable under the Licence Agreement and these Kwara Software General Terms and Conditions and which are unpaid at the date of termination, shall forthwith become due and payable to Kwara by the Customer;
12.9.2. the provisions of the Licence Agreement and these Kwara Software General Terms and Conditions shall, to the extent stated or necessarily implied, survive the termination thereof;
12.9.3. unless otherwise provided in the Licence Agreement and these Kwara Software General Terms and Conditions, termination is without prejudice to any other right or remedy of the Parties. Termination of the Licence Agreement and these Kwara Software General Terms and Conditions does not release either Party from any liability which, at the time of termination, has already accrued to the other Party or which may accrue in respect of any act or omission prior to termination or from any obligation that is expressly stated to survive the termination; and
12.9.4. each Party shall return (where practicable) all the Materials (if any) belonging to the other Party including any data, information, files of completed or unfinished work as soon as is practically possible and shall have no lien over the Material of the other Party.
13. Representation and Warranties:
13.1. Each Party represents and warrants to the other Party that:
13.1.1. it has all requisite power and authority to execute, deliver and perform its obligations under the Licence Agreement and, further, that it has been fully authorised by all requisite corporate actions to do so;
13.1.2. it has all necessary statutory and regulatory permissions, authorisations, consents, approvals, licences and permits for running, operating and conducting its business;
13.1.3. it has full right, title and interest in and to all trade names, trademarks (both registered and unregistered), service marks, logos, trade secrets, innovation, invention, symbols and other proprietary marks (collectively Intellectual Property), which it provides to the other Party, for use with respect to the Kwara Software (including limited right of use of the Intellectual Property owned by any of its agents, affiliates or subcontractors) and that, any Intellectual Property provided by a Party will not infringe the right of any third party;
13.1.4. it will provide such cooperation as the other Party reasonably requests in order to give full effect to the provisions of the Licence Agreement and these Kwara Software General Terms and Conditions; and
13.1.5. the execution and performance of the Licence Agreement and these Kwara Software General Terms and Conditions by either of the Parties does not and shall not violate any provision of any existing arrangement, agreement, contract, law, rule, regulation, order or judicial pronouncement.
13.2. Any misrepresentation made by either Party in this clause 12 shall be deemed to be a material breach of the terms of the Licence Agreement and these Kwara Software General Terms and Conditions by that Party.
13.3. Except as provided herein, there are no other express or implied warranties, representations, undertakings or conditions.
14. Intellectual Property
14.1. The Parties acknowledge and agree that:
14.1.1. nothing herein shall confer or be deemed to confer on either Party, any right, title or interest in the other Party's Intellectual Property and each Party hereby acknowledges that it shall not acquire any right, title or interest in respect thereof;
14.1.2. all Intellectual Property which may hereinafter be disclosed by a Party to the other Party shall, notwithstanding such disclosure, remain the exclusive property of the disclosing Party and the other Party shall not use or authorise the use of any such Intellectual Property otherwise than as expressly permitted herein or in the Licence Agreement and for the purposes stated therein;
14.1.3. both Parties agree to maintain and protect the Intellectual Property belonging to the other Party, at all times, and not to do or cause to be done or permit any activity that may prejudice or damage the other Party's ownership or right to the Intellectual Property and/or the goodwill associated thereto. Either Party's breach of this clause 13.1.3 shall constitute a material breach of the Licence Agreement and these Kwara Software General Terms and Conditions, entitling the other Party to terminate this Agreement in accordance with clause 11 hereof;
14.1.4. each Party shall co-operate fully with the other Party to protect the other Party's Intellectual Property and, in particular shall, on becoming aware of the same, promptly notify the other Party of any actual or potential infringements, claims or actions brought by third parties in relation to such Intellectual Property. Each Party shall be solely responsible for the registration, protection and/or enforcement of its Intellectual Property rights and shall bear all cost relating thereto;
14.1.5. either Party shall not make any admission, attempt to settle or otherwise contact any third party in respect of any claim involving the other Party’s Intellectual Property without the written consent of the other Party;
14.1.6. if a third party claims that the Material provided by the Customer to Kwara under this Agreement, misappropriate or infringe such third party's Intellectual Property or proprietary rights, the Customer shall defend and hold Kwara harmless from and against any such claim and/or action and shall pay all costs, damages, liabilities and all related expenses, that a court may finally award or as may be agreed in an out of court settlement;
14.1.7. the Customer acknowledges that Kwara's obligations under the Licence Agreement and these Kwara Software General Terms and Conditions may be impacted when Kwara’s Materials are subject to an injunction or court order precluding their use. In such event, Kwara will use commercially reasonable efforts to continue availing the Kwara Software to the Customer using non-infringing Materials but Kwara will not be penalised or held responsible, in any manner whatsoever, for any damages, downtime, unavailability and/or service level credits, and such caused by the affected Material during such periods of suspension, provided always that Kwara shall avail a certified copy of such injunction or court order to the Customer as soon as is practically possible.
14.2. Kwara retains all right, title and interest in and to Kwara’s Intellectual Property. Any Intellectual Property developed by Kwara or the Customer during the use of the Kwara Software shall exclusively, wholly and solely belong to Kwara and the Customer shall have no claim whatsoever thereto. Further, the Customer hereby acknowledges that the Customer does not acquire any ownership interest in or right to possess the Kwara Software, and that the Customer has no right of physical access to the Kwara Software.
14.3. Kwara shall not acquire any ownership interest in or right to the information that the Customer transmits to or from the Kwara Software, other than is expressly provided herein.
14.4. If Kwara or any of its clients is faced with a credible claim that the Kwara Software infringes the Intellectual Property rights of a third party, and Kwara is not reasonably able to obtain the right to use the infringing element or modify the Kwara Software such that it does not infringe, then Kwara may terminate or suspend the Licence Agreement on reasonable written notice to the Customer and Kwara will not have any liability on account of such termination and/or suspension except to refund any unutilised Subscription Fee prepaid by the Customer as of the time of termination.
14.5. breach of any of the provisions of this clause 13 by either Party shall be deemed to be a material breach of the terms of the Licence Agreement and these Kwara Software General Terms and Conditions by that Party.
15.1. General Indemnity: Each Party shall defend, indemnify and hold harmless the other Party and its respective officers, directors, employees, affiliates and agents from and against all claims, actions, judgments, costs, demands, penalties, suits, liabilities, losses, damages and all related expenses based on:
15.1.1. damage to tangible, personal or real property, to the extent that such injury or damage arises from the negligence of or breach of the Licence Agreement and these Kwara Software General Terms and Conditions by the indemnifying Party;
15.1.2. damage to or loss of the indemnified Party's Materials and/or, confidential information, Intellectual Property rights caused by the indemnifying Party’s acts and/or omissions;
15.1.3. claims by government regulators and/or agencies for fines, penalties, sanctions or other remedies arising from or in connection with that Party's failure to comply with its regulatory obligations or breach of the Licence Agreement and these Kwara Software General Terms and Conditions;
15.1.4. any third party claim on account of a breach of confidentiality, Intellectual Property and security of data, including any breach occurring as a result of acts of omissions of that Party's employees, agents and/or sub contractors;
15.1.5. any claim occurring on account of proven gross negligence or willful misconduct of that Party’s employees, agents and/or subcontractors in relation to the Licence Agreement and/or these Kwara Software General Terms and Conditions; and/or
15.1.6. any claim occurring on account of default in payment of that Party's tax obligations.
15.2. The Customer hereby agrees and undertakes to indemnify on a full and unqualified indemnity basis, defend and hold Kwara harmless from any and/or all claims, actions, demands, penalties, suits, liabilities, losses, damages and/or costs on account of any misuse and/or unauthorised use of the Kwara Software, the Marketing Information or Kwara’s Material by the Customer or the Customer's employees, agents, subcontractors, Account Holders and/or any third person acting on behalf of the Customer or under the control and/or direction of the Customer.
15.3. Notwithstanding anything contained in this Agreement, Kwara shall have no obligation towards the Customer, Account Holders and/or the Customer’s clients, affiliates and/or any third party claiming through the Customer as regards the Kwara Software, to the extent it is proved that the use of the Kwara Software is affected by the quality, appropriateness and/or compatibility of the Customer’s Materials. Further, Kwara shall not, in any manner, be held responsible for any breach of contract by the Customer with any of the Account Holders and/or any of the Customer’s clients, strategic partners, suppliers and/or affiliates.
16.1. Notwithstanding the provisions of clauses 10 and 13 herein:
16.1.1. the Customer agree that Kwara may disclose that the Customer is using the Kwara Software for the Customer’s business operations and in this regard, Kwara may use the Customer’s name, trade mark, trade name, service mark and/or logo (collectively referred to as the Trademarks) to identify the Customer as Kwara’s client on the Marketing Information, on Kwara website or elsewhere;
16.1.2. Kwara shall be entitled to issue a press release about the conclusion of the Licence Agreement and the business relationship between Kwara and the Customer; and
16.1.3. for the purposes of clauses 15.1.1and 15.1.2 above, the Customer grants Kwara for the Term, the non-exclusive, worldwide right to use the Trademarks.
17. Governing Law
17.1. The License Agreement and/or this Kwara Software General Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Kenya.
18. Dispute Resolution
18.1. Any dispute, controversy or claim arising out of or relating to the License Agreement and/or these Kwara Software General Terms and Conditions or a termination hereof (including without prejudice to the generality of the foregoing, whether as to its interpretation, application or implementation) (the Dispute), shall be resolved by way of consultation held in good faith between the parties. Such consultation shall begin immediately after one party has delivered to the other written request for such consultation. If within fifteen (15) Business Days following the date of delivery of the aforementioned notice the Dispute cannot be resolved amicably, the Dispute shall be submitted to Mediation in accordance with the provisions of 17.2
18.2. Should any Dispute as is referred to in clause 17.1 above arise between the Parties and the consultation process referred to in clause 17.1 above shall have not resolved the Dispute, the Dispute shall upon application by any Party be referred to mediation by a single mediator to be appointed by the Chairman of the Chartered Institute of Arbitrators, Kenya Branch. The appointment of the mediator shall be final and binding on the Parties. The mediation shall take place in Nairobi and the language of mediation shall be English. The mediation shall be conducted in accordance with the rules or procedures for mediation under the Mediation Rules 1995. Should the mediation process not have resolved the Dispute within thirty (30) days, the Party shall refer the matter for resolution by a court of competent jurisdiction in Kenya
18.3. Notwithstanding the foregoing, a Party is entitled to seek relief or conservatory measures from a court in Kenya of competent jurisdiction.
19.1. All notices or other communications to be given under the License Agreement and/or the these Kwara Software General Terms and Conditions shall be made in writing and sent by letter or email and (save as otherwise stated) shall be deemed to be duly given or made when delivered (in the case of personal delivery), when despatched (in the case of email provided that the sender has received a receipt indicating proper transmission) or seven (7) Business Days after being deposited in the post, postage prepaid by registered post to such party at its address or email specified in the License Agreement or at such other address or email as such Party may specify for such purpose to the other by notice.
19.2. A notice or other communication received on a day other than a Business Day or after business hours in the place of receipt shall be deemed to be given on the next following Business Day in such place.
20.1. Nothing in the License Agreement and/or these Kwara Software General Terms and Conditions is intended to or shall be construed as establishing or implying any partnership of any kind between the Parties and none of the Parties shall represent to any person that it is authorised to act on behalf of the other Parties or that any partnership, agency, employment or joint liability exists between the Parties in respect of any person who is not a party to the License Agreement and/or these Kwara Software General Terms and Conditions.
20.2. Kwara may amend and/or vary these Terms and Conditions and any amendments and/or variations thereto shall be published on the Kwara website and shall take effect on the date of the publication or as otherwise provided in such amendment or variation. The Borrower’s continued use of the Services will constitute the Borrower’s agreement to be bound by these Terms and Conditions as amended or varied from time to time.
20.3. The benefits of the License Agreement and these Kwara Software General Terms and Conditions shall endure for the benefit of the successors and assigns of each of the Parties but the obligations of each Party under the License Agreement and these Kwara Software General Terms and Conditions shall not be transferred to any other person or be assignable except with the prior written consent of the other Party.
20.4. If any provision of the License Agreement and/or these Kwara Software General Terms and Conditions shall to any extent be held, in whole or in part, to be illegal or unenforceable under any enactment or rule of law, that term or provision or part shall to that extent be deemed not to form part of the License Agreement and/or these General Terms and the enforceability of the remainder of the License Agreement and/or these General Terms Agreement shall not be effected thereby.
20.5. No failure or delay to exercise any power, right or remedy by any Party shall operate as a waiver of that right, power or remedy and no single or partial exercise by any Party of any right, power or remedy shall preclude its further exercise or the exercise of any other right, power or remedy.
20.6. The Licence Agreement and these Kwara Software General Terms and Conditions represents the entire understanding and agreement between the Customer and Kwara regarding the Kwara Software and supersedes all other previous agreements.