CELLSOFT SOFTWARE Terms and Conditions

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1. Cellsoft Technologies registered in Kenya   A000241414P and whose registered office is at 214 Kilimani Road, Nairobi Kenya, KE ( Cellsoft); and
2. The company whose details are entered on the online order form or the Order Confirmation, through which the relevant products and/or services are purchased ( COMPANY/CLIENT NAME).

1. Background
   1. Cellsoft has developed certain software applications, platforms, and related services which it makes available to customers through the Services and which the Customer wishes to use. Cellsoft has agreed to provide and the Customer has agreed to take and pay for Cellsoft’s Services subject to this Agreement.
2. Definitions  AND INTERPRETATION
   1. The definitions and rules of interpretation in this Clause 3 apply in this Agreement.

Additional Services:  additional services provided to the Customer in accordance with Clause 8.

Affiliate : any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Agreement:  together these Terms and Conditions, the schedules, and the documents referred to in them. 

Anonymised Aggregated Data:  anonymised statistical data (excluding any personal data as defined by Kenya data protection laws) which Cellsoft extracts from the Customer Data or from the data of other third-party users of the Software or Cellsoft’s services or which Cellsoft extrapolate from the use of its software and services by its customers. 

Authorised Users: The Customer Users and Third-Party Users.

Business Day: any day which is not a Saturday, Sunday, or public holiday in Kenya.

Commencement Date:  for online orders, the date of Cellsoft acceptance of the Customer's submission of its online order, and for offline orders the date of Cellsoft' signature of an Order Confirmation. 

Confidential Information:  information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 15.

Customer Back-up Policy:  the policy detailing the backup facility provided by Cellsoft as set out in Schedule 4. 

Customer Data:  the data inputted by the Customer, Authorised Users, or Cellsoft on the Customer's behalf, into the information fields of the Software or otherwise collected by Cellsoft for the purpose of facilitating the Customer’s use of the Services. 

Customer Users:  those employees of the Customer who are authorised by the Customer to use the Services, as further described in Clause 5.

          Documentation:  the documents made available from time to time which set out the description of the Services and user instructions for the Services.

End-User Licence Agreement:  the end-user licence agreement that any Authorised User must accept before accessing the Services, the current version of which is attached in Schedule 5.

Fees:  the fees payable by the Customer to Cellsoft for the Services as set out in Schedule 2 – Order Confirmation.

Initial Term:  the initial term of this Agreement as set out in the Service Description Summary. 

Nominated Support Users:  a maximum number of Authorised Users as specified in the Service Description Summary who the Customer may identify to Cellsoft as users for support services.

Normal Business Hours:  08.00 to 17.00 in East Africa each Business Day or as otherwise detailed in the Service Description Summary. 

Order Confirmation:  the order confirmation is either: (a) signed by the Customer and sent to Cellsoft and attached to Schedule 2, or (b) completed and submitted to Cellsoft by the Customer online; in either case which incorporates these Terms and Conditions.

Privacy Policy:  Cellsoft’s privacy policy as amended from time to time and available at www.cellsofttechnologies.com ] which sets out the scope, nature, and purpose of processing by Cellsoft, the duration of the processing and the types of Personal Data and categories of Data Subject.

Renewal Term:  the period described in Clause 19.1. 

Security Policy:  Cellsoft' security policy' as amended from time to time and available at www.cellsofttechnologies.com

 

Service Description Summary:  Schedule 1, being the description of the Services, Subscription Levels, and associated information.

Service Levels:  Cellsoft’s service level commitments are set out in the Service Level Agreement.

Service Level Agreement  or SLA: Cellsoft’s policy for providing Support Services or other support or training services provided or performed by Cellsoft with respect to the Services under this Agreement and any associated Service Levels in relation to the Services, as set out in Schedule 3. 

Services:  the services provided by Cellsoft to the Customer under this Agreement as described in the Service Description Summary, including a license to use the Software on the terms of this Agreement and as applicable the Support Services and any Additional Services.

Software:  the online software application provided by Cellsoft as part of the Services as set out in the Service Description Summary.

Subscription Level:  the subscription level, expressed as several Authorised Users, (as described in the Service Description Summary) purchased by the Customer which entitles access to and use of the Services in accordance with this Agreement.

Support Services:  the support services as described in Schedule 3.

Terms of Business:  the section of the proposal document in which the schedule of payments, associated triggers, agreed-on payment terms, and the initial and renewal periods for this agreement are set out. 

Third-Party Users:  any third parties or agents and independent contractors of the Customer who are not Customer Users, approved by Cellsoft to use the Services, as further described in Clause 5.

Virus:  anything or device (including any software, code, file, or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1. In the event of a conflict between these Terms and Conditions, the Service Description Summary, and/or Service Level Agreement, the following order of precedence shall prevail: 1) Service Description Summary; 2) these Terms and Conditions; 3) Service Level Agreement. Any conflict will be solved through mediation between the two parties and no financial claim will be raised from any of the two parties. 
2. Where the context requires any reference to the singular shall include the plural and vice versa.
3. Any phrase introduced by the terms include, including, particularly or in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the preceding words.
4. Any reference to "written" or "writing" includes e-mails (but not fax or other transitory forms).
5. References to times of the day are to London time and references to a day are to a period of 24 hours commencing at midnight at the start of the day.

1. SERVICES
   1. Cellsoft shall provide the Services to the Customer in accordance with this Agreement.
   2. The Customer acknowledges and agrees that any part of the Services, the Service Level Agreement, or the terms of this Agreement may be amended from time to time. Cellsoft will give the Customer at least one month’s notice in writing of such change. 
   3. If a change referred to in Clause 4.2 substantially adversely affects the quality or functionality of a Service the Customer shall be entitled to terminate this Agreement within three months of the effective date of the change by notice in writing to Cellsoft, and in such circumstances shall be entitled to receive a refund of any part of the Fees already paid in respect of that Service covering a period after the effective date of termination. 
2. SUBSCRIPTION LEVELS
   1. Subject to the Customer paying the appropriate Fees in accordance with this Agreement, the restrictions set out in this Clause 5, and the other requirements of this Agreement, Cellsoft hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services in accordance with the Subscription Level for the duration of this Agreement solely for the Customer's internal business operations.
   2. In relation to the Authorised Users, the Customer warrants and represents that:

1. its access to and use of the Services shall not exceed the restrictions associated with the Subscription Level;
2. it will not allow or suffer any Authorised User account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
3. each Authorised User shall keep a secure password for their use of the Services, and that each Authorised User shall keep their password confidential;
4. it shall permit Cellsoft on reasonable prior notice to audit the Customer's use of the Services in order to establish the name and password of each Authorised User and the Customer's adherence to any restrictions associated with the relevant Subscription Level. Such an audit may be conducted no more than once per quarter (unless Cellsoft has reasonable grounds to suspect a breach of this Agreement), at Cellsoft’ expense; 
5. if an audit referred to in Clause 5.2(d) reveals that the Customer has underpaid Fees to Cellsoft or has otherwise breached any restrictions associated with a Subscription Level, the Customer shall pay to Cellsoft within 10 (ten) Business Days of the date of the relevant audit: (i) an amount equal to such underpayment plus interest in accordance with clause 13.3 (b) as calculated in accordance with Cellsoft' then-current prices for the Subscription Level which the Customer should have had in place), and (b) Cellsoft' costs reasonably and properly incurred of conducting the audit.
   1. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a)      is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive;

(b)      facilitates illegal activity;

(c)      depicts sexually explicit images;

(d)     promotes unlawful violence;

(e)      is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

(f)       causes damage or injury to any person or property;

and Cellsoft reserves the right, without liability to the Customer, to disable the Customer’s access to and delete from its Services any material that breaches the provisions of this Clause 5.3.

1. copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the   Services in any form or media or by any means;
2. reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
3. access all or any part of the Services in order to build a product or service which competes with the Services;
4. use the Services to provide services to third parties who are not Authorised, Users;
5. subject to Clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users;
6. obtain, or assist third parties in obtaining access to the Services, other than as provided under this Clause 5; or
7. attempt to do or facilitate the doing by any third party of any of the things referred to in this Clause 5.4.
   1. The Customer shall use commercially reasonable endeavors to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Cellsoft. To the extent permissible by law, Cellsoft will not be liable for any loss that the Customer, an Authorised User or any third party may incur as a result of any use or misuse of any username or password or of any part of the Services, whether with or without the Customer's knowledge. 
   2. The rights provided under Clause 5 are granted to the Customer and its Affiliates in the territory in which the Customer is based only.

1. CHANGES TO SUBSCRIPTION LEVELS
   1. The Customer shall have the right to create and grant access to additional individual Authorised Users, provided that the Customer's usage of the Services remains in accordance with the relevant Subscription Level. If Cellsoft approves the Customer’s request to enhance the Subscription Level, the Customer shall, within 21 (twenty one) days of the date of Cellsoft’s invoice, pay to Cellsoft the relevant Fees for such enhanced Subscription Level in accordance with Cellsoft' then current price list and, if such enhanced Subscription Level is purchased by the Customer part way through the Initial Term, such Fees shall be pro-rated for the remainder of the Initial Term.
   2. The Customer shall ensure that any Authorised Users to whom it makes the Services available are aware of and comply with this Agreement and agree on the terms of the End User Licence Agreement. The Customer shall not amend the terms of the End User Licence Agreement provided to Authorised Users without Cellsoft’s prior written consent.
   3. The Customer is solely responsible and liable for use of the Services by its Authorised Users. To the extent permitted by law, Cellsoft will not be liable for any loss that the Customer, any Authorised User, or any third party may incur as a result of any use of the Services in breach of this Agreement. 
2. SUPPORT SERVICES
   1. Cellsoft shall use commercially reasonable endeavors to make the Software available 24 (twenty-four) hours a day, 7 (seven) days a week, except for scheduled maintenance. Cellsoft will give the Customer reasonable advance notice of any scheduled maintenance and use reasonable endeavors to minimise any disruption to the Customer's use of the Services caused by it.
   2. Cellsoft will, as part of the Services, provide the Support Services to the Customer and Authorised Users during Normal Business Hours in accordance with Cellsoft’s Service Level Agreement in effect at the time that the Support Services are provided. The Customer may purchase enhanced support services separately at Cellsoft’s then current rates.
   3. Unless otherwise agreed, Cellsoft will provide support only to Nominated Support Users, and not any other Authorised Users.
3. ADDITIONAL SERVICES
   1. Subject to the payment of the appropriate fees and the terms of this Agreement, Cellsoft shall provide Additional Services in accordance with any request made by the Customer from time to time and agreed in an additional service description incorporated into this Agreement. 
4. DATA PROTECTION
   1. Both parties will comply with all applicable requirements of the Data Protection Legislation and the Privacy Policy and Security Policy. This clause is in addition to and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation.
   2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Cellsoft is the data processor. Schedule 6 sets out the scope, nature, and purpose of processing by Cellsoft, the duration of the processing, and the types of personal data and categories of the data subject.
   3. Cellsoft shall, in relation to any personal data processed in connection with the performance by Cellsoft of its obligations under this Agreement:

1. The process that personal data only on the written instructions of the Customer, unless Cellsoft is otherwise required to do so by the laws of any member of the European Union or by the laws of the European Union that apply to Cellsoft (“Applicable Laws”). Where Cellsoft is required by Applicable Laws to process personal data, Cellsoft shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prevent Cellsoft from notifying the Customer;
2. ensure that it has appropriate technical and Organizational measures in place in order to protect against any unauthorised or unlawful processing of personal data, accidental loss or destruction of personal data, and damage being caused to personal data. These measures shall be appropriate to (a) the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction, or damage of the personal data, and (b) the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting (in transit) personal data, ensuring confidentiality, integrity, availability, and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
3. ensure only personnel required for the purposes of carrying out this Agreement have access to personal data, and that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
4. if the Customer is unable to access the relevant information, to assist the Customer, and in any event, at the Customer’s cost, provide reasonable   assistance in responding to any request from a supervising authority or a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5. notify the Customer without undue delay on becoming aware of a personal data breach;
6. in accordance with Cellsoft’ standard policies for backup as provided to the Customer from time to time, delete, or return (at the Customer’s to store the personal data; and
7. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits to be carried out by the Customer, or the Customer’s designated auditor, only so far as is necessary in order to demonstrate compliance, provided that the Customer (a) provides Cellsoft with no less than 30 days’ notice of such audit or inspection; (b) refunds Cellsoft for all reasonable costs and expenses that it incurs as a result of any such audit or inspection; and (c) both parties agree on the scope, duration, and purpose of such audit or inspection. If the Customer becomes privy to any Confidential Information of Cellsoft as a result of this clause, the Customer shall hold such Confidential Information in confidence and, unless required by law, not make the Confidential Information available to any third party, or use the Confidential Information for any other purpose. The Customer acknowledges that Cellsoft shall only be required to use reasonable endeavors to assist the Customer in procuring access to any third-party assets, records, or information as part of any audit;
   1. The Customer:
8. will ensure, and warrants that, it has all necessary and appropriate consents and notices in place to ensure that it can lawfully transfer the personal data to Cellsoft, for the duration and purposes of the Agreement;
9. shall, unless otherwise provided for in the Agreement, be solely responsible for the legality, security, confidentiality, integrity, availability, accuracy, and quality of any data it transfers and processes; 
10. shall provide Cellsoft with a detailed description of the data processing activities, including the personal data concerned, as set out in Schedule 6, and warrants that such description will be accurate, complete, and sufficient to satisfy the Data Protection Legislation; 
11. is solely responsible for responding to any request from a data subject and in ensuring its own compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;
    1. Subject to Clause 9.6, the Customer authorises Cellsoft to appoint (and permit each third-party processor appointed in accordance with this Clause 9 to appoint) third-party sub-processors in accordance with this clause nine and any restrictions in this Clause 9.
    2. Cellsoft may appoint alternative third party processors to provide materially like for like services to the Customer as part of the Services subject to (a) Cellsoft entering into a written agreement with such third party processor incorporating terms which are substantially similar to those set out in this Agreement, and (b) such third party processor being able to demonstrate at least as high a standard of service quality and compliance to the previously appointed third party processor.   
    3. Cellsoft shall give the Customer prior written notice of the appointment of any new third-party processor and provide the Customer with full details of the processing to be undertaken by the third-party processor. If the Customer objects (on reasonable grounds) to the proposed appointment, subject to the termination provisions of the Agreement, either party may terminate the Agreement by providing Cellsoft with 30 days advance written notice.
    4. Except in relation to Customer Data, which is also Personal Data, the Customer shall own all rights, title, and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
    5. Cellsoft shall follow its archiving procedures for Customer Data as set out in the Customer Back-Up Policy. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Cellsoft to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Cellsoft in accordance with the archiving procedure described in the Customer Back-up Policy. Cellsoft shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Cellsoft to perform services related to Customer Data maintenance and backup).
    6. Cellsoft shall, in providing the Services, comply with its Privacy Policy and Security Policy relating to the privacy and security of the Customer Data as may be notified to the Customer from time to time, as such document may be amended from time to time by Cellsoft in its sole discretion.
    7. The Customer grants Cellsoft a perpetual, irrevocable, worldwide, royalty-free right to use Anonymised Aggregated Data solely to improve the quality of its Software and Services and to provide additional value-added services to its customers.
    8. Cellsoft warrants that:
12. the Anonymised Aggregated Data shall not include any personal data as defined by Kenya data protection laws;
13. it will not sell or sub-license Anonymised Aggregated Data to third parties save in connection with software and services supplied by Cellsoft or its Affiliates to its customers from time to time. 

1. CELLSOFT’S OBLIGATIONS
   1. Cellsoft undertakes that the Services will be performed :

1. substantially in accordance with the Service Description Summary and the Service Levels;
2. with reasonable skill and care;
3. in a timely and efficient manner, using appropriately qualified and experienced staff; and 
4. in accordance with all laws and regulations applicable to Cellsoft. 
   1. The undertaking at Clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Cellsoft’s instructions, or modification or alteration of the Services by any party other than Cellsoft or Cellsoft’s duly authorised contractors or agents. If the Services do not conform with the undertaking at Clause 10.1, Cellsoft will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly in accordance with the Service Levels or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 10.1., provided that if Cellsoft is not able to achieve such correction or substitution within a reasonable period having used such reasonable commercial endeavors the Customer shall be entitled to terminate this Agreement as it relates to the Services in question.
   2. Notwithstanding the foregoing sub-Clauses of this Clause 10, Cellsoft:

1. does not warrant that the Customer's use of the Services will be uninterrupted, error-free, or completely secure; nor that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; 
2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities;
3. is not responsible for unauthorised access to Customer Data or the unauthorised use of the Services unless the unauthorised access or use results from Cellsoft’s failure to meet its security obligations stated in the Security Policy. 
   1. This agreement shall not prevent Cellsoft from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products, and/or services that are similar to those provided under this Agreement.
   2. Cellsoft warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

1. CUSTOMER'S OBLIGATIONS
   1.  The Customer shall:

1. provide Cellsoft with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Cellsoft in order to render the Services, including Customer Data, security access information, and configuration information;
2. comply with all applicable laws and regulations with respect to its use of the Services and its activities under this Agreement;
3. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner; 
4. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and/or the End User Licence Agreement and shall be responsible for any Authorised User’s breach of this Agreement and/or the End User Licence Agreement;
5. only allow Authorised Users who have been issued with a username and password and who have agreed to and are bound by the End User Licence Agreement to access the Services and take all necessary steps to prevent access to the Services by any person except Authorised Users unless otherwise permitted by this Agreement;
6. obtain and maintain all necessary licenses, consents, and permissions necessary for Cellsoft, its contractors, and agents to perform their obligations and exercise their rights under this Agreement, including the Services;
7. ensure that its network and systems comply with the relevant specifications for use of the Services provided by Cellsoft from time to time; 
8. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Cellsoft’s data centers and Services, and for all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
9. use reasonable security precautions in connection with its use of the Services;
10. take all reasonable steps to mitigate the risks inherent in the use of the Services, including data loss. The Services that Cellsoft has agreed to provide to the Customer to mitigate such risks are set out in the Customer Back-up Policy. Cellsoft does not promise to back up Customer Data except to the extent detailed in the Customer Back-up Policy and Cellsoft does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Service Description Summary or Customer Back-up Policy. In all events, the Customer releases Cellsoft from liability for loss or damage of data to the extent that the data has changed since the time that Cellsoft was last required by the Agreement to perform a back-up and such change was not solely caused by Cellsoft’s negligence. 
    1. Cellsoft shall not be liable to the Customer for any breach of this Agreement to the extent the same arises out of or in connection with any breach by the Customer of its obligations under this Clause 11 or otherwise set out in this Agreement. If any such Customer breach occurs Cellsoft shall be afforded such additional time and shall be entitled to charge such additional amounts as are reasonably necessary to allow it to perform its obligations under this Agreement notwithstanding the Customer's breach.
    2. Certain Cellsoft Services are designed to help the Customer comply with various regulatory or contractual requirements that may be applicable to the Customer. The Customer is responsible for understanding and complying with the regulatory and contractual requirements applicable to its business and for selecting and using the Services in a manner that complies with the applicable requirements. 

1. CHANGE CONTROL
   1. If at any time the Customer wishes to alter the scope of the Services, it may provide Cellsoft with full written particulars of its requested alterations. If the Customer does so it shall also provide such further information as Cellsoft may reasonably require.
   2. Cellsoft shall, within a reasonable time, and if it is prepared to agree on the change, provide a written estimate to the Customer of:

1. the likely time required to implement the change;
2. any variations to Cellsoft' Fees arising from the change;
3. the likely effect of the change on the delivery of the Services; and
4. any other impact of the change on the terms of this Agreement.
   1. If the Customer wishes Cellsoft to proceed with the change, Cellsoft has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Fees, the Services, and any other relevant terms of this Agreement.

1. CHARGES AND PAYMENT
   1. The Customer shall pay the Fees to Cellsoft for the Services in accordance with this Clause 13 and such other payment terms detailed in this       Agreement.
   2. Cellsoft will send the Customer an invoice for Additional Services either as agreed or as soon as they have been provided or at the end of the month in which they were provided.
   3. If Cellsoft has not received payment of any Fees payable under this Agreement within 10 (ten) days after the due date (being 30 (thirty) days from the date of the invoice, unless otherwise specified on the invoice), and without prejudice to any of its other rights and remedies, Cellsoft may:

1. without liability to the Customer, on at least 5 (five) Business Days' notice, disable the Customer’s or any Authorised Users' password, account, and access to all or part of the Services and Cellsoft shall be under no obligation to provide any or all of the Services while the invoice(s) concerned, any interest, administrative and legal costs of collecting payment, and any further sums payable, remain unpaid; and
2. charge interest on such overdue amounts at an annual rate equal to 3% over the then-current base lending rate of Cellsoft’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
   1. All amounts and fees stated or referred to in this Agreement:
3. shall be payable in the currency specified in the Order Confirmation;
4. shall be due and payable within 30 (thirty) days from the date of the invoice; 
5. are, subject to Clause 17.4(b), non-cancellable and non-refundable;
6. are exclusive of value-added tax, or any other relevant local taxes or tariffs which, where applicable, will be charged and added to Cellsoft’s invoice(s) at the appropriate rate and payable by the Customer;
7. shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (including any deduction or withholding of tax as required by law).
   1. If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Service Description Summary, Cellsoft Technologies shall charge the Customer, and the Customer shall pay, Cellsoft’s excess data storage fees as detailed in the Service Description Summary. 
   2. Cellsoft may, however, increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period. Each such increase shall take effect from each anniversary of the Commencement Date and be based on the latest available figure for the percentage increase in the Retail Prices Index at the beginning of the month before the anniversary of the Commencement Date. 

1. PROPRIETARY RIGHTS
   1. The Customer acknowledges and agrees that Cellsoft and/or its licensors own all intellectual property rights in the Services (including the Software) and the Documentation including for clarity any changes to the Services or Software made in the course of this Agreement and that except as expressly stated, this Agreement does not grant the Customer any rights to, or in, the same.
   2. Cellsoft confirms that it has all the rights in relation to the Services including the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, this Agreement.
2. CONFIDENTIALITY
   1. Each party may be given access to Confidential Information from the other party to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

1. is or becomes publicly known other than through any act or omission of the receiving party;
2. was in the other party's lawful possession before the disclosure;
3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
4. is independently developed by the receiving party, which independent development can be shown by written evidence; 
5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body;
6. has been anonymised and aggregated, in Cellsoft’s exercise of the rights set out in Clause 9.5 and 9.6.
   1. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information other than in accordance with this Agreement.
   2. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
   3. Cellsoft shall not be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any third party save where such loss, destruction, alteration, or disclosure arises directly from a breach by Cellsoft of its obligations as set out in the Security Policy.
   4. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Cellsoft’s Confidential Information.
   5. Cellsoft acknowledges that the Customer Data is the Confidential Information of the Customer.
   6. This Clause 15 shall survive termination of this Agreement, however arising, and for 3 (three) years thereafter.

1. INDEMNITY
   1. The Customer shall defend, indemnify and hold harmless Cellsoft, its partners from time to time, its employees and agents from and against any claims, actions, proceedings, losses, damages, expenses, and costs (including court costs and reasonable legal fees and expenses) arising out of or in connection with the Customer's and/or any Authorised User's use the Services other than strictly in accordance with this Agreement, provided that:

1. the Customer is given prompt notice of any such claim;
2. Cellsoft provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and
3. the Customer is given sole authority to defend or settle the claim.
   1. Cellsoft shall defend the Customer, its Affiliates, officers, directors, and employees against any claim that the Services infringe any patent, trademark, or database right (in each case registered in the UK and effective as of the Commencement Date), or any copyright or right of confidentiality (subsisting in the UK as of the Commencement Date), and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
4. Cellsoft is given prompt notice of any such claim;
5. the Customer provides reasonable co-operation to Cellsoft in the defense and settlement of such claim, at Cellsoft’s expense; and
6. Cellsoft is given sole authority to defend or settle the claim.
   1. In the defense or settlement of any claim, Cellsoft may in its sole discretion: (a) procure the right for the Customer to continue using the Services; (b) replace or modify the Services so that they become non-infringing; or (c) if it considers such remedies commercially or otherwise impractical, terminate this Agreement on 2 (two) Business Days’ notice to the Customer. 
   2. In no event shall Cellsoft, its employees, agents, and sub-contractors be liable to the Customer to the extent that an indemnified alleged infringement is based on:
7. a modification of the Services by anyone other than Cellsoft; or
8. the Customer's or any Authorised User’s use of the Services in a manner contrary to the instructions given to the Customer by Cellsoft; or
9. the Customer or any Authorised User’s use of the Services after notice of the alleged or actual infringement from Cellsoft or any appropriate authority.

1. LIMITATION OF LIABILITY
   1. Without prejudice to Cellsoft’s right to Fees, this Clause 17 sets out the entire financial liability of Cellsoft (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of:

1. any breach of this Agreement;
2. any use made by the Customer of the Services or any part of them; and
3. any representation, statement, or tortious act or omission (including negligence) arising under or in connection with this Agreement.
   1. Except as expressly and specifically provided in this Agreement:

1. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer and its Authorised Users, and for conclusions drawn from such use. 
2. Cellsoft shall have no liability for :

1. all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
2. the Services are provided to the Customer on an "as is" basis.
   1. Nothing in this Agreement excludes or limits the liability of Cellsoft:

1. for death or personal injury caused by Cellsoft’s negligence; 
2. for fraud or fraudulent misrepresentation; or
3. for any other liability which may not lawfully be excluded or limited. 
   1. Subject to Clauses 17.2 and 17.3:
4. Cellsoft shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, indemnity, misrepresentation, restitution or otherwise for any: (i) loss of profits; (ii) loss of business; (iii) depletion of goodwill and/or similar losses; (iv) loss or corruption of data or information; (v) pure economic loss; or (vi) for any special, indirect or consequential loss, costs, damages, charges or expenses whatsoever; in each case arising under or in connection with this Agreement; and
5. Cellsoft’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), indemnity, misrepresentation, restitution or otherwise, arising under or in connection with this Agreement in each twelve (12) month period calculated from the Commencement Date shall be limited to the total Fees paid for the purchased Subscription Levels during that twelve (12) month period.
   1. Cellsoft agrees to have in place valid insurance it considers sufficient to cover its potential liability under this Agreement. 
   2. The parties acknowledge and agree that the limitations and exclusions of liability set out in this Agreement reflect a fair and equitable apportionment of risk-taking account of (amongst other things) the Fees and the nature of the Services. Each party agrees that it is responsible for making its own arrangements for the insurance or mitigation of any loss it may suffer which is limited or excluded by this Agreement. 

1. SUSPENSION OF SERVICES
   1. Cellsoft may suspend any or all of the Services without liability:

1. if Cellsoft reasonably believe that the Services are being used in breach of the Agreement and the Customer does not remedy a breach within 10 (ten) days of Cellsoft’s written notice to the Customer describing the breach;
2. if the Customer fails to co-operate with Cellsoft’s reasonable investigation of any suspected breach of the Agreement;
3. if there is an attack on the Services or the Services are accessed by or manipulated by a third party without Cellsoft’s consent; 
4. if Cellsoft is required by law to suspend the Services or the Customer's access to the Services; or 
5. if there is another event for which Cellsoft reasonably believes that suspension of the Services is necessary to protect any network, system, Services, the Customer or any other customer;
6. in the circumstances set out in Clause 13.3.
   1. Cellsoft will give the Customer advance notice of a suspension under this Clause 18 of at least twelve (12) Business Hours unless Cellsoft determines in its absolute discretion that a suspension on shorter or contemporaneous notice is necessary to protect Cellsoft or its customers from imminent and significant operational or security risk. 
   2. If the Customer's systems or Services are compromised, the Customer must address the vulnerability and demonstrate to Cellsoft’s satisfaction that it has appropriately addressed and/or fixed such vulnerability prior to Cellsoft resuming the Customer's access to the Services. 

1. TERM AND TERMINATION
   1. This Agreement shall unless otherwise terminated earlier as provided in this Clause 19, commence on the Commencement Date, and shall continue for the Initial Term and, thereafter, shall continue until terminated by either party providing 3 months’ notice in writing to the other party, such notice to expire no earlier than the end of the Initial Term.
   2. Without affecting any other rights that it may be entitled to, either party may give notice in writing to the other terminating this Agreement immediately if:

1. the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days of being notified in writing to do so; or
2. the other party: (i) has a receiver or administrative receiver appointed over it or over any part of its business or assets;   (ii) passes a resolution for winding up (except for the purposes of a genuine scheme of solvent amalgamation or reconstruction) or has a court of competent jurisdiction make an order to that effect; (iii) becomes subject to an administration order; (iv) enters into any voluntary arrangement with its creditors; or (v) ceases or threatens to cease to carry on business.
   1. Without affecting any other rights that it may be entitled to, Cellsoft may terminate the Agreement for breach if:

1. payment of any invoiced amount is overdue and the Customer does not pay the overdue amount within four (4) Business Days of a written notice from Cellsoft;
2. payment arrangements have been made by the Customer for payment via credit card or another third party, and the credit card issuer or third-party refuses to pay Cellsoft’s Fees .
   1. On termination of this Agreement for any reason or expiry of this Agreement:
3. all licences granted under this Agreement including all access to the Software by the Customer and its Authorised Users shall immediately terminate; 
4. each party shall return and make no further use of any equipment, property, Documentation, and other items (and all copies of them) belonging to the other party;
5. Cellsoft may destroy or otherwise dispose of any Customer Data in its possession unless Cellsoft receives, no later than 10 (ten) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Cellsoft shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 (thirty) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Cellsoft in returning or disposing of Customer Data; and
6. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
   1. On termination by either party other than termination by Cellsoft under Clause 19.2(a) or 19.2(b) or 19.3, Cellsoft will continue to provide Services to the Customer at its request for up to 6 (six) months until it has migrated the Customer Data to another supplier and Cellsoft will do what is reasonable to assist the Customer in such migration, provided that the Customer pays Cellsoft the Fees due for such Services monthly in advance. The provisions of this Agreement, including the Service Levels, will remain in effect until the completion of the migration. Cellsoft will not be liable for any third-party costs incurred by the Customer in connection with the migration.
   2. If this Agreement is terminated during the Initial Term on the Customer's breach or pursuant to clause 19.3, the Customer will be liable to pay all Fees for the remaining months of the Initial Term or then current Renewal Term. 

1. FORCE MAJEURE

Cellsoft shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Cellsoft or any other party); failure of a utility service, transport, the internet, power grid, or telecommunications network; the act of God, war, riot, civil commotion, malicious damage; compliance with any law or governmental order, rule, regulation or direction' accident, breakdown of plant or machinery; fire, flood, storm; or other events of a magnitude or type for which precautions are not generally taken in the industry, provided that the Customer is notified of such an event and its expected duration as soon as reasonably possible after its occurrence.

1. WAIVER
   1. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
   2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
2. SEVERANCE
   1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
   2. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
3. ENTIRE AGREEMENT
   1. This Agreement, and any documents referred to in it including the End User Licence Agreement, constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding, or agreement between them relating to the subject matter it covers.
   2. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
4. ASSIGNMENT, ETC.
   1. The Customer may assign its rights under this Agreement to an Affiliate of the Customer provided that the party to which Customer assigns its rights provides a written undertaking to Cellsoft to continue to be bound by all the terms of this Agreement.
   2. Cellsoft may at any time assign, transfer, or sub-contract all or any of its rights or obligations under this Agreement provided that the party to which Cellsoft assigns, transfers or sub-contracts provides a written undertaking to the Customer to continue to be bound by all the terms of this Agreement.
5. NO PARTNERSHIP OR AGENCY

1. THIRD-PARTY RIGHTS
   1. Save for Authorised Users (who shall be bound by the terms of the End User Licence Agreement),  this agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. 
2. NOTICES
   1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by email, hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.
   2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 09:00 on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice delivered by email shall be deemed to have been received at the time of transmission.
3. GOVERNING LAW AND JURISDICTION
   1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and shall be construed in accordance with, the law of Kenya.
   2. The parties irrevocably agree that the courts of Kenya have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).