Terms of Purchase and Use

/Terms of Purchase and Use

Last Updated: 13/09/2017.

PLEASE READ CAREFULLY BEFORE PURCHASING AND USING THIS SAAS SERVICE.

BY PURCHASING THE PRODUCTS, AND/OR ACCESSING AND USING THE SAAS SERVICE AND THE ASSOCIATED WEBSITE, APPLICATIONS AND TOOLS, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. THESE TERMS OF PURCHASE AND USE FORM PART OF THE SAAS SUBSCRIPTION AGREEMENT, WHICH YOU ARE REQUIRED TO ACCEPT IN CONNECTION WITH YOUR INITIAL AND SUBSEQUENT PURCHASING OF AND USE OF THE SAAS SERVICE.

Unless otherwise defined in these Terms of Purchase and Use, the definitions stated in the SAAS Subscription Agreement will apply to these terms.

 

SAAS Services; Grant of Rights

If SAAS Services are obtained pursuant to an Order Form, Service Provider grants you (the “Customer” as defined under the SAAS Subscription Agreement) and your staff (collectively, the “Users”), for the Term of Service indicated in the Order Form, and subject to you purchasing the Service subscriptions in accordance with the Order Form, a limited, non-exclusive, terminable, non-transferable and non sub-licensable right to access and use the services, tools and applications provided through the SAAS Service subject to these Terms of Purchase and Use. The SAAS Service may include download areas and product information provided by Service Provider or third-party vendors. All SAAS Services, including any updates, enhancements, new features, and/or the addition of any new internet properties, are subject to these Terms of Purchase and Use. All rights not expressly granted to you and your Users pursuant to the SAAS Subscription Agreement are reserved to Service Provider, and all uses of the SAAS Service not expressly permitted hereunder are prohibited.

 

Permitted and Prohibited Use

Limited Use

You and your Users may access the SAAS System and use the SAAS Services solely to support and operate in your internal business only, including:

  • any products purchased by you from Service Provider; and
  • Service Provider’s web-based monitor and control management portal, if any (“the “Portal”).

Service Provider reserves the right, in its sole discretion and without notice, to limit your and/or your Users’ use of the SAAS Services in the event that Service Provider determines that your and/or your Users’ use thereof to be inconsistent with such purposes, and/or otherwise inconsistent with these Terms of Purchase and Use.

The Service Provider will use all reasonable endeavours, but is under no obligation, to notify the Customer where it appears that the Service Capacity will be exceeded.  Where the Customer’s output exceeds the agreed Service Capacity, the Customer agrees and acknowledges that the Overage Charges will apply without further notice. The Service Capacity and the Overage Charges are set out in the Order Form.

Prohibited Uses

You agree, for yourself and all your Users, as a condition of use of the SAAS Services, not to use the SAAS Services for any purpose that is unlawful, prohibited by these terms, conditions, and notices, or otherwise by law. You and your Users may not use the SAAS Service in any manner that could damage, disable, overburden, or impair any Service Provider or subscriber server, or the network(s) connected to any Service Provider or subscriber server, or interfere with any other party’s use and enjoyment of any of the SAAS Services. You and your Users may not attempt to gain unauthorized access to any part of the SAAS Services, other accounts, computer systems or networks connected to any Service Provider or subscriber server or to any part of the SAAS Services, through hacking, password mining, encryption or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SAAS Services. Except as expressly set forth herein, you and your Users MAY NOT:

  • copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the SAAS Services, or any associated applications or tools thereof;
  • disassemble, decompile, or reverse engineer the software used to provide the SAAS Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SAAS Services;
  • take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the SAAS Services’ control or security systems, or allow or assist a third party to do so;
  • access, store, distribute or transmit any viruses or any material during the course of its use of the SAAS Services that is unlawful, harmful, infringing or is otherwise illegal or causes damage or injury to any person or property; or
  • license, sell, lease, transfer, distribute, display, disclose or otherwise commercially exploit, or otherwise make the SAAS Services and/or any part of the SAAS System or Portal available to any third party except authorised users.

Suspension of Service

Service Provider may at any time suspend (or require that you suspend) the access of Users to the SAAS Services and/or disable their Login Information in the event of violation of these terms and conditions. Grounds for doing so are not limited but may include, for example, legal or regulatory reasons, investigation of suspicious activities, or action by authorities, or if Service Provider or you have reason to suspect any such User is engaged in activities that may violate these Terms of Purchase and Use, applicable laws, or subscriber policies, or are otherwise deemed harmful to Service Provider, your organization, your and our respective network or facilities, or other Users. Service Provider shall not be liable to any User for suspension of SAAS Service, regardless of the grounds.

 

Freedom to Contract

Unless agreed otherwise, this Agreement shall not prevent the Service Provider from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

 

Ownership; Customer and User Submissions

You and your Users acknowledge, understand and agree that the Service Provider and/or its licensors own all intellectual property rights in the SAAS Services, the SAAS System, the Portal and any other system or documentation made available to the Customer, howsoever and wherever created or existing.

As between you and your Users and Service Provider, the SAAS Services, any material or information provided pursuant to the SAAS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by Service Provider, its agents or contractors, are the property of Service Provider, and are protected by Kenyan and international intellectual property laws, as applicable. By using the SAAS Services, neither you nor your Users gain any ownership or any other proprietary interest in such items.

Service Provider does not claim ownership of the usage information you or your Users provide for the use and operation of the SAAS Services. However, you grant to the Service Provider and its vendors and contractors a royalty free irrevocable and perpetual licence to use such information to operate and administer the SAAS Services. In addition, Service Provider may retain, analyze, use and share such information in anonymous, filtered, or aggregate form for general business purposes.

Service Provider reserves the right to carry out any Scheduled Maintenance it deems necessary at any time, including the right to upgrade, modify, replace or reconfigure the SAAS Services.  Service Provider will provide at least 5 Business Days’ advance notice prior to any Scheduled Maintenance taking effect.   Service Provider also reserves the right to vary the fee schedule, support terms, and Service Level Agreements for the SAAS Services subject to at least thirty (30) days’ advance notice, except that the change will not apply for the remainder of the Term of Service to the amount and type of SAAS Services you have contracted for under existing Order Forms. Any such notice may be given and shall be effective if sent via email sent to your account representative, or if included in any amendment, extension or new version of this Agreement or any Order Form.

 

Links to Third Party Sites

The SAAS Service may provide links that allow you or your Users to leave Service Provider’s service and/or access third party websites. The linked sites in many cases are not under the control of Service Provider and Service Provider is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Service Provider is not responsible for webcasting or any other form of transmission received from any linked site. Service Provider provides these links only as a convenience, and the inclusion of any link does not imply endorsement by Service Provider of the site.

 

Use of Passwords; Internet

You are responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). Each User must have a valid username and password for the purpose of accessing the SAAS Services. You and your Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred without your consent and control.

You and your Users are responsible for maintaining the confidentiality of that User’s username and password. You and your Users are responsible for any and all activities that occur under all your Users’ accounts. You agree to notify Service Provider immediately of any unauthorized use of your Users’ accounts or any other breach of security. Service Provider will not be liable for any loss that you or a User may incur as a result of someone else using your Users’ passwords or accounts, either with or without the applicable Users’ knowledge.

Service Provider does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each User’s sole responsibility and the responsibility of Internet provider(s) you select. Service Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment.

 

Communications from Service Provider

Service Provider may periodically contact you or Users for customer service purposes. By accessing the SAAS Services, you and each User consent to receive such communications.

You agree that Service Provider may reference its business relationship with you in its marketing or sales materials without notice to you.

 

Payments

You agree to adhere to the payment terms indicated in each Order Form all payments due from you thereunder. If not otherwise indicated in the Order Form, all payments are due within seven (7) days from the invoicing date.

You agree to accept responsibility for paying and reporting (a) all state and local taxes, however designated, levied or based on account of the purchase price of any products or SAAS Services or on account of your acquisition or ownership or use of the products or services (exclusive only of taxes based on net income derived by Service Provider), and (b) all foreign taxes, export or import tariffs, and custom duties, however designated, levied or based in connection with the product and/or services supplied or otherwise purchased hereunder , or your acquisition or ownership or use of the services or products. You agree to hold Service Provider harmless from all claims and liability arising in connection with your failure to report or pay such taxes or any levies or fees due.

In the event that you default in any of the terms and conditions of the SAAS Subscription Agreement, including these Terms of Purchase and Use and any Order Forms completed and approved thereunder, or a petition for bankruptcy is filed by or against you, then, to the extent permitted by applicable law, Service Provider shall have the right to exercise one or more of the following remedies:

  • To declare the entire amount of the unpaid total fees due and payable plus all other fees that would otherwise come due for the remainder of the Term of Service;
  • To terminate this Agreement as to any or all of the Order Forms.

All remedies of Service Provider hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Service Provider to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Service Provider of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.

 

Notice Specific to Software Available with the SAAS Services

Any software that is made available to download from the SAAS Services (“Software”) is the copyrighted and proprietary work of Service Provider and/or its suppliers. Use of the Software is governed by the terms of the Service Subscription Agreement, if any, which accompanies or is included with the Software (“Service Subscription Agreement”). In some cases, you or a User may be unable to install any Software that is accompanied by or includes a Service Subscription Agreement, unless you first agree to the Service Subscription Agreement terms.

The Software so provided is made available for download solely for use according to the Service Subscription Agreement. Any reproduction or redistribution of the Software not in accordance with the Service Subscription Agreement is expressly prohibited by law, and may result in civil and criminal penalties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE SERVICE SUBSCRIPTION AGREEMENT ACCOMPANYING SUCH SOFTWARE.

 

Changes to Terms of Use

SERVICE PROVIDER RESERVES THE RIGHT TO CHANGE THESE TERMS OF PURCHASE AND USE FROM TIME TO TIME. SUCH CHANGES WILL BECOME EFFECTIVE WHEN THE REVISED TERMS OF USE AS PART OF THE SERVICE OR ON ANY RELATED WEBSITE ARE POSTED. THE MOST CURRENT VERSION OF THE TERMS OF USE CAN BE REVIEWED BY CLICKING ON THE “TERMS OF PURCHASE AND USE” HYPERTEXT LINK LOCATED IN THE HOME PAGE FOR THE SERVICE. USERS SHOULD CHECK THE TERMS OF PURCHASE AND USE FROM TIME TO TIME, AS THEY ARE BOUND BY THE TERMS SO POSTED FROM AND AFTER THE TIME ANY CHANGES ARE POSTED. ANY REVISED TERMS OF USE SHALL SUPERSEDE ALL PREVIOUS VERSIONS.

 

Termination of the SAAS Subscription Agreement; Effect of Termination or Expiration

In the event that you breach any term of the SAAS Subscription Agreement, or you or your Users breach these Terms of Purchase and Use, and such breach is not cured within 10 days after receipt of notice thereof from Service Provider, Service Provider may terminate the SAAS Subscription Agreement in whole or in part immediately upon written notice to you. Notwithstanding the foregoing, there shall be no cure period for any Event of Default that is not curable.

Upon expiration or prior termination of the SAAS Subscription Agreement, all rights granted herein shall immediately terminate and revert to Service Provider. All access to and use of the SAAS Services by Users. Including any part of the SAAS System and/or Portal, must then cease, and all materials, applications and tools downloaded from the SAAS Service must be erased, deleted, or destroyed. The Service Provider is entitled to request confirmation and/or evidence of such action.

 

No Warranties, Limitation of Liability

THE SAAS SERVICES AND ANY TOOLS, SYSTEMS, APPLICATIONS, INFORMATION OR MATERIALS PROVIDED TO YOU IN CONNECTION WITH THE SAAS SERVICES ARE PROVIDED “AS IS,” AND ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY AND, EXCEPT AS MAY BE OTHERWISE STATED IN THIS AGREEMENT, NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SERVICE PROVIDER DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF THE SAAS SERVICES.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SERVICE PROVIDER’S OBLIGATIONS HEREUNDER.

NO WARRANTY IS PROVIDED BY THE SERVICE PROVIDER THAT YOUR USE OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

THE TERMS OF THE SERVICE LEVEL AGREEMENT NOTWITHSTANDING, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.

You and your Users release and waive all claims against Service Provider, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents, subcontractors and representatives of each of the foregoing (the “Service Provider Group”), from any and all claims, damages, liabilities, costs and expenses arising out of your and your Users’ use of the Products and the SAAS Services.  The Service Provider Group shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the products, system or the SAAS Services.

Customer Representations

You represent and warrant that:

  • you have full power and authority to enter into the SAAS Subscription Agreement, and to agree to all the terms and conditions contained therein and in these Terms of Purchase and Use;
  • only you and your Users shall be permitted to access the SAAS Services and any related tools, applications, information and materials provided in connection with the SAAS Services, including the SAAS System and Portal; and
  • you shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the Products and the SAAS Services.

Reporting Infringement

By accessing and/or using the SAAS Services, Users agree to report to Service Provider all claims or suspected claims of copyright or other infringement of Service Provider’s intellectual property or other proprietary rights. Claims of infringement should be directed to Legal Department of the Service Provider via email sent to LEGAL@FINPLUSGROUP.COM with the subject line: “SUSPECTED INTELLECTUAL PROPERTY INFRINGEMENT REPORT”.

______________________________

If you believe that any information on the SAAS Service infringes on your intellectual property, including your copyright, you should notify Service Provider of your claim in accordance with the following procedures. Service Provider will process notices of alleged infringement in accordance with applicable intellectual property laws.

To be effective, the notice of infringement must contain the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the proprietary work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Service Provider to locate the material;
  4. Information reasonably sufficient to permit the Service Provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of fraud and perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Miscellaneous.

Force Majeure. Failure to perform by reason of any law or governmental statute, natural disaster, acts of terrorism, acts of God, riot, civil commotion, war, utility, network, and infrastructure failure, labour controversy, encumbered intellectual property right, war or any similar event beyond a party’s reasonable control shall not be a breach hereof.  Service Provider will not be liable for any service level failure or service response time to the extent that such failure or delay is due to such an event of force majeure.  Each party so affected by the event of force majeure will use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this Agreement.  If the event of force majeure continues for a consecutive period of more than three (3) months, the parties may, each acting in good faith, agree to terminate this Agreement.  Any outstanding fees as at the termination date will be due and payable in respect of any part of the applicable Billing Cycle not affected by the event of force majeure.

Confidential Information. Each party may be given access to confidential information from the other party in order to perform its obligations under this Agreement. Each party will hold the other’s confidential information in confidence and not make the other’s confidential information for any purpose other than the implementation of this Agreement. Neither party will be responsible for any loss, destruction, alteration or disclosure of confidential information caused by any third party. The provisions of this sub-clause will survive termination of this agreement, howsoever arising.

Inadequacy of damages. You acknowledge and agree that the SAAS Services and the tools, applications, information and materials provided in connection with the SAAS Services possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to Service Provider or other Users for which Service Provider or such other customers of the Service Provider would not have an adequate remedy at law. Therefore, without prejudice to any other rights or remedies that Service Provider may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by you. Accordingly, Service Provider shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement without the necessity of proving damages or furnishing a bond or other security.

Severance. If any provision herein is unenforceable, then such provision shall be of no effect on any other provision hereof.  Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

Conflict. In the event of any inconsistency between any provisions in the main body of this Agreement, the Order Form and the Terms of Purchase and Use, and unless agreed otherwise, these Terms of Purchase and Use will prevail.

Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation on any statement in this Agreement.

Assignment.  The Service Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Customer shall not, without the prior consent of the Service Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

Variation. No variation of this Agreement will be effective unless it is in writing and signed by the Service Provider.

Waiver. No waiver of any breach, right or remedy hereof shall be deemed a waiver of any other breach, right or remedy hereof.

Interpretation. Section headings are provided for convenience only, and shall not be used to construe the meaning of any section hereof.  These terms shall be binding on, and endure to the benefit of, the parties to these terms and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.  Any obligation on a party not to do something includes an obligation not to allow that thing to be done.  A reference to this agreement, these terms or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or notated (in each case, other than in breach of the provisions of this agreement) from time to time.

Governing law and jurisdiction. This agreement shall be construed and enforced under the laws of the Republic of Kenya without reference to the choice of law principles thereof. Each party irrevocably agrees that the courts of Republic of Kenya shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

 

END OF TERMS OF PURCHASE AND USE