Terms of Use | Cellsoft Technologies

1. Parties

Cellsoft Technologies registered in Kenya A000241414P and whose registered office is at 214 Kilimani Road, Nairobi Kenya, KE (Cellsoft); and
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).

2. Background

2.1 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.

3. Definitions and Interpretation

3.1 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.
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's 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 Data:: the data inputted by the Customer, Authorised Users, or Cellsoft on the Customer's behalf, into the information fields of the Software.
Fees:: the fees payable by the Customer to Cellsoft for the Services as set out in Schedule 2 – Order Confirmation.
Privacy Policy:: Cellsoft's privacy policy as amended from time to time and available at www.cellsofttechnologies.com.
Services:: the services provided by Cellsoft to the Customer under this Agreement as described in the Service Description Summary.
Software:: the online software application provided by Cellsoft as part of the Services.

4. Services

4.1 Cellsoft shall provide the Services to the Customer in accordance with this Agreement.

4.2 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.

4.3 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.

5. Subscription Levels

5.1 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.

5.2 In relation to the Authorised Users, the Customer warrants and represents that:

its access to and use of the Services shall not exceed the restrictions associated with the Subscription Level;
it will not allow any Authorised User account to be used by more than one individual;
each Authorised User shall keep a secure password for their use of the Services;
it shall permit Cellsoft on reasonable prior notice to audit the Customer's use of the Services.

5.3 The Customer shall not access, store, distribute or transmit any Viruses, or any unlawful material during the course of its use of the Services.

6. Changes to Subscription Levels

6.1 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.

6.2 The Customer shall ensure that any Authorised Users to whom it makes the Services available are aware of and comply with this Agreement.

7. Support Services

7.1 Cellsoft shall use commercially reasonable endeavors to make the Software available 24 hours a day, 7 days a week, except for scheduled maintenance.

7.2 Cellsoft will, as part of the Services, provide the Support Services to the Customer and Authorised Users during Normal Business Hours.

9. Data Protection

9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation and the Privacy Policy and Security Policy.

9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Cellsoft is the data processor.

13. Charges and Payment

13.1 The Customer shall pay the Fees to Cellsoft for the Services in accordance with this Clause 13.

13.3 If Cellsoft has not received payment within 10 days after the due date, Cellsoft may:

disable the Customer's or any Authorised Users' password, account, and access to all or part of the Services;
charge interest on such overdue amounts at an annual rate equal to 3% over the then-current base lending rate.

17. Limitation of Liability

17.1 This Clause 17 sets out the entire financial liability of Cellsoft to the Customer in respect of any breach of this Agreement.

17.3 Nothing in this Agreement excludes or limits the liability of Cellsoft for death or personal injury caused by Cellsoft's negligence, or for fraud.

17.4 Subject to Clauses 17.2 and 17.3, Cellsoft shall not be liable for any loss of profits, loss of business, or any special, indirect or consequential loss.

19. Term and Termination

19.1 This Agreement shall 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.

19.2 Either party may give notice in writing to the other terminating this Agreement immediately if the other party commits a material breach and fails to remedy that breach within 30 days.

28. Governing Law and Jurisdiction

28.1 This Agreement and any disputes or claims arising out of or in connection with it is governed by and shall be construed in accordance with, the law of Kenya.

28.2 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.

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