Cart is emptyTerms And Conditions.
For all PowerPay® Appliatrix® IoT Subscription users, effective January 1, 2024. Use of the services and procurement of hardware constitute acceptance of these terms of service.
RECITALS
1. PowerPay develops and markets complete end to end IoT hardware and software including web-based applications and Application Programming Interfaces (APIs) for integrating, managing, and accessing Internet-of-Things (IoT) devices, systems and cloud applications for operational and information technology infrastructure related to Electric appliance monitoring that provides visibility of devices beyond the meter and device control. The hardware, software as a service and API stack are known as PowerPay® Appliatrix® IoT hardware and software.
2. Customer desires to use PowerPay® Appliatrix® IoT Hardware, the Software as a Service as well as related services, such as help support, for its business purposes of managing electric appliances, and PowerPay desires to grant Customer use of the Hardware and Software as a Service. THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
3.DEFINITIONS
1.1. “Affiliate(s)” means any corporation, company or other entity that controls, is controlled by, or is under common control with a party. A corporation or other entity shall be deemed to control another if it owns or controls more than forty percent (40%) of the voting stock or other ownership interest of the corporation or entity. References herein to Customer shall be deemed to include reference to its affiliates unless otherwise specified or the context otherwise requires. For the avoidance of doubt, Customer affiliates shall include all operating divisions of Customer.
1.2. “Authorized Platform” means the computer or operating system, or both, on which Customer is authorized to use the Software as a Service pursuant to this Agreement.
1.3. “Authorized Appliances” means an appliance that is authorized to carry the Software as a Service. Each Authorized Appliance will be listed in the corresponding Job Order.
1.4. “Authorized Use” means the use of Hardware, Subscription Software as a Service, Documentation and related materials by Customer are strictly limited to a BUSINESS TO CONSUMER(B2C) model and for devices specifically digitalized by GIVE Limited. Resale under B2B or any other third-party resale or sharing of hardware or software is prohibited.
1.5. “Documentation” means all user manuals and other written material created by POWERPAY to describe the functionality or assist in the use of the Software as a Service.
1.6. “Hardware” means Physical PowerPay IoT hardware.
1.7. “Job Order” means any written statement of Software as a Service and related services issued by Customer to PowerPay under the terms and conditions of this Agreement, accepted by each party, each incorporated into this Agreement and thereby set forth in the Exhibits.
1.8. “Customer” includes any employee, consultant, or contractor of Customer, provided that the employee, consultant, or contractor is using the Software as a Service in the performance of his or her duties as an employee, consultant, or contractor of Customer under a B2C business model.
1.9. “Subscription Fee” means the recurrent fee to be paid by Customer to PowerPay as consideration for a Software as a Service granted under this Agreement, specifically, the right to use the Software as a Service and the Documentation. Each Subscription Fee for each Authorized appliance will be listed in the corresponding Job Order.
1.10. “PowerPay” means PowerPay® Appliatrix® Hardware and Software platforms.
1.11. “Software as a Service” means all applications and APIs marketed and accessed through a subscription and other monthly fees for PowerPay® Appliatrix® and the Documentation, including all related files, updates, modification, derivative works, copies, bug fixes, updates, enhancements, or other modifications or materials, regardless of the form or media in or on which they may exist. It does not include any version of the Software as a Service that constitutes a separate product because of differences in function or features. Any reference in this Agreement to Hardware supply and Software as a Service being “sold” or “purchased” is understood to be a reference in fact to the Hardware Sold and Software as a Service being accessed through a subscription and excludes all third-party programs.
1.12 . “Subscriber” means any single end user utilizing the Hardware and Software as a Service to serve their customers through a Business to Consumer(B2C) Model in any PowerPay® Appliatrix® IoT product or any other product, device or application authorized by PowerPay to incorporate the Software as a Service.
1.13. “Customer Data Onboarding” means the addition of all necessary and available data into the Software as a Service to meet the requirements specified in the Job Order Customer Data Onboarding is dependent on Customer providing all requested documentation to ensure data modeling efforts reflect actual appliance conditions.
1.14. Business to Business (B2B) means a business model where product is sold to another business that either resells cookers using a B2C model or another business that resells software as a service or data vendor.
1.15. Third Party means another business that is not party to this agreement.
4. GRANT OF SUBSCRIPTION LICENSE.
4.1. Grant. Subject to the terms and conditions set forth in this Agreement, POWERPAY hereby grants to Customer, and Customer hereby accepts, a nonexclusive, nontransferable license to use the hardware and Software as a Service exclusively for the Authorized Use on the Authorized Platform and at the Authorized Site as specified in each Job Order, and to use any Documentation solely in connection with Customer’s use of the Hardware and Software as a Service for the period specified in each Job Order under the terms and conditions of this Agreement.
4.2. Acceptance Date. Acceptance of the terms and conditions for hardware and Software as a Service will occur or be deemed to occur once this agreement is approved and accepted by customer.
4.3. Subscription Restrictions. Except as specifically granted in this Agreement, POWERPAY owns and retains all right, title, and interest in the hardware and Software as a Service, Documentation, and any and all related materials, including any ideas, updates, and improvements thereof (cumulatively, the “Deliverables”). This Agreement does not transfer ownership rights of any description in the Deliverables to Customer or any third party. Customer shall use the Deliverables (including Hardware and Software as a Service) only in accordance with the Agreement and all applicable laws, General Data Protection Regulation and the Kenya Data Protection Act 2019 and other regulations including the and operational only for the Authorized Use, on the Authorized Platform, and at the Authorized Site as may be listed in the corresponding Job Order. Customer further agrees to: (a) be responsible for its, its Affiliates, and all Subscriber’s compliance with the Agreement as may be updated, amended or modified from time to time; (b) be responsible for the accuracy, quality and legality of its and its Subscriber’s Data; (c) take other necessary steps to protect POWERPAY’s intellectual property rights; and, (d) use commercially reasonable efforts to prevent unauthorized access to or use of hardware and software, and notify POWERPAY promptly of any such unauthorized access or use, whether actual or suspected. If usage of an account significantly exceeds usage anticipated or bargained for in a Job Order, POWERPAY shall notify Customer before taking further actions if such excessive usage affects performance of POWERPAY’s Deliverables and service and/or risks exceed the Not to Exceed price listed in a Job Order. Customer will ensure that it, its Affiliates and Subscribers shall not: (a) modify, reverse engineer, replicate, publish, adapt, translate, copy or decompile the hardware, software and related Services, or create derivative works based on the Provided Hardware, Software as a Service or Documentation; (b) distribute or allow access to the Hardware, Software as a Service or Documentation to any persons or entities other than Customer’s employees, consultants, contractors or Subscribers described in the corresponding Job Order (Authorized Use); (c) sell, license, distribute, rent or lease the Hardware, Software as a Service or Documentation to any person or make any other commercial use of the software or otherwise exploit the software; (d) use any Software as a Service to store or transmit infringing, libelous, or unlawful material, or any material in violation of third-party privacy rights, or do anything unlawful, misleading, malicious or discriminatory; (e) interfere with or disrupt the integrity or performance of any Software as a Service or third-party data; (f) attempt to gain unauthorized access to any Hardware and Software as a Service or Systems; (g) access any Software as a Service, or use information to build or encourage a competitive product or service; (h) upload, post, publish or otherwise transmit through the Web Application any viruses, bugs or other harmful, disruptive or destructive files; or, (i) violate any local, state, provincial, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with the use of the Software as a Services.
4.4. Confidentiality and Ownership Rights to Software as a Service. Customer acknowledges and agrees that the Hardware and Software as a Service is the confidential and proprietary property of POWERPAY, and except to the extent expressly authorized in this Agreement, Customer receives no rights to and will not sell, rent, license, distribute, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose the Software as a Service, whether in whole, in part, or in any manner whatsoever. Customer further agrees not to disclose or permit the sale, rental, licensing, distribution, transfer, or disclosure of the Software as a Service or its contents to any other party, either during the term of this Agreement or thereafter in excess of the Authorized Use, Authorized Platform and Authorized Location for the Job Order. POWERPAY shall retain complete ownership of all ideas, suggestions, modifications, and derivative works provided to, developed jointly, or upon recommendation of Customer as part of any maintenance, support, or services. In no event shall any support, maintenance, services, or Software as a Service provided to Customer by POWERPAY pursuant to this Agreement be deemed to be based on any “work made for hire” agreement between the Parties.
5. SUBSCRIPTION FEES.
5.1. Subscription Fees. In consideration for the access granted to Customer under this Agreement, Customer shall pay POWERPAY a Monthly Software as a Service fees, as set forth in the Job Order and hereby attached by reference to this Agreement. Except as otherwise provided herein, once the Software as a Service has been made available to the Customer, the payment listed in the relevant Job Order shall be non-refundable. All amounts not paid within twenty (30) days of date shown on the Job Order or in the payment term negotiated between POWERPAY and Customer shall bear interest at the lesser of 2 percent (1%) per month or the highest amount allowed by law without prejudice to POWERPAY’s other rights.
5.2. Taxes. In addition to other amounts payable under this Agreement, Customer shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer’s use of the Software as a Service or the payment of the Subscription Fee to POWERPAY, other than taxes assessed against POWERPAY’s net income in a timely manner. Such taxes, duties, fees, withholding, or other charges shall be paid by Customer or Customer shall provide the appropriate authority with valid evidence of exemption from such tax, duty, fee, withholding, or charge. If POWERPAY is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to POWERPAY from Customer pursuant to this Agreement, Customer shall promptly reimburse POWERPAY any such amounts.
6.LICENSOR’S OBLIGATIONS.
6.1. Services Delivered. Upon substantial completion of Customer data onboarding, POWERPAY shall invite Customer’s authorized users to the Software as a Service and thus will begin the Software as a Service term. Any changes to data or visualizations requested by the Customer following sign-off may be subject to one-time service fees or the execution of a new project contract, depending on the severity of the changes requested. Subscription Service
6.2. Support and Maintenance. POWERPAY shall provide Customer with technical support in connection with Customer’s use of the Software as a Service according to each Job Order at the rate and for the duration agreed to in each Job Order, attached by reference hereto. Except in cases of extended outage, requests for support from Customer shall be submitted via the Software as a Service Support portal. POWERPAY shall respond to tickets within 24 hours of submittal. Responses shall be issued via the Software as a Service Support portal in the form of a status change on the ticket. When resolution is achieved, POWERPAY shall provide written response in the ticket detailing the resolution of all issues submitted via the Support portal for reference by Customer within the Software as a Service. Resolution times for standard support will vary by request and are not guaranteed. From time to time, POWERPAY may provide Customer with modifications, bug fixes, updates, or subsequent product releases. Support extends only to the data integrated into the POWERPAY system and does not cover any other software platforms unless provided by POWERPAY for the purposes of data transfer. POWERPAY will communicate with Customer if there are scheduled or unscheduled service outages that happen because of maintenance, troubleshooting, disruptions or otherwise as necessary. Maintenance extends to the POWERPAY-owned technologies and does not cover the availability of the building’s internet connection or the up-time of the company’s cloud provider.
6.3. Customer Responsibilities. Customer shall provide all necessary information, access and assistance for Software as a Service set-up in accordance with the aforementioned Job Order and service performance that allows POWERPAY to meet the support and maintenance standards as outlined in this agreement. Customer shall inform POWERPAY if there are any physical building-level or business-level changes that may require a review, modification or amendment to the Software as a Service from the as-built state agreed upon by both parties as noted in section 4.1 above. Any such changes will result in additional service fees or the execution of a new project contract, depending on the severity of the change(s). A proposal for work related will be provided by POWERPAY and approved by Customer prior to commencement of any work.
7.TERM AND TERMINATION.
7.1. Term This Agreement, and the subscription granted under this Agreement, becomes effective on the date when Customer first accesses the Software as a Service, whichever is sooner, below (the “Effective Date”) and shall remain in effect for a period of one year from the Effective Date and shall automatically renew for an additional twelve (12) months at the end of each year period unless and until a party terminates this Agreement as provided herein.
7.2. Termination. Customer may terminate the Agreement or one or all Job Orders at any time on thirty (30) days’ prior written notice to POWERPAY. Any subscription fees paid prior to the time of cancellation notice are non-refundable and cannot be pro-rated. Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement or a Job Order, or several of them, as follows: (a) by POWERPAY, upon fifteen (30) days’ written notice, if Customer fails to pay the amounts due to POWERPAY pursuant to this Agreement or a Job Order; (b) by POWERPAY, upon fifteen (30) days’ written notice, if there is a change in control of Customer, whether by sale of assets, stock, or otherwise; (c) by either party for any material breach of this Agreement, that is not cured within fifteen (30) days of receipt by the party in default of a notice specifying the breach and requiring its cure; or (d) by either party, immediately upon written notice, if: (1) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (2) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days; or (3) the other party is adjudged bankrupt.
7.3. Survival of Certain Terms. The rights and obligations which by their nature are intended to survive expiration or termination of this Agreement including Sections 2.3, 2.4, 5, 6, 7, 8, 9 and 11 will survive any termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
7.4. Rights on Termination. POWERPAY has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of IoT Hardware and Software as a Service and/or Documentation. On termination all rights granted to Customer under this Agreement cease and Customer will promptly cease all use and reproduction of the Software as a Service and Documentation, and Customer will promptly return all copies of the IoT hardware and Software as a Service and Documentation to POWERPAY or destroy all of Customer’s copies of the Software as a Service and Documentation and so certify to POWERPAY in writing within fourteen (14) days of termination. When an account or Job Order has been cancelled or terminated, or when this Agreement has been terminated (and thereby all Job Orders), all of the content of such account or Job Order, by and through this Agreement, will be inaccessible to Customer and its Subscribers when the cancellation or termination has been processed. Within thirty (30) days, all content will be permanently deleted from active systems and logs and within sixty (60) days, all content will be permanently deleted from POWERPAY’s backups except to protect its contractual obligations and interests or by order of law or regulatory body. In the event of a default, where POWERPAY is found to be the defaulting party, POWERPAY shall return all unrecouped Fees to Customer and, conversely, where Customer is found to be in default, POWERPAY shall retain all paid licensing fees and Customer shall immediately pay all monies owed.
8.WARRANTIES, DISCLAIMER, AND LIMITATIONS.
8.1. Warranties. POWERPAY warrants to Customer that (a) POWERPAY is the owner of the IoT Hardware, Software as a Service and the Documentation or has the right to grant to Customer access to use the Software as a Service and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party.
8.2. Limitations on Warranties. Except as expressly stated in this Agreement, there are no warranties or conditions (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) with respect to the IoT Hardware, Software as a Service, Documentation or other Deliverable, and no representation as to accuracy, availability, or usability, as further described in this section. POWERPAY is not liable and shall have no obligation for: (a) normal wear and tear, accident, misuse, abuse, improper installation, handling or testing, or unauthorized repair or modification of IoT Hardware and Software as a Service or any integrated system therein, Documentation or other Deliverable, or any defect or nonconforming service or Software as a Service, Documentation or other Deliverable that is caused by use of any materials not supplied or approved by POWERPAY or use of any Software as a Service, Documentation or other Deliverable other than in accordance with its Documentation or this Agreement. Software as a Service users, including but not limited to Subscribers, must be human.
8.3. Disclaimer. THE PROVISIONS OF THIS ARTICLE 6 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE, AND LICENSOR’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF, AND LICENSOR GRANTS NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL MEET THE LICENSEE’S REQUIREMENTS, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; (c) ANY WARRANTY THE SOFTWARE WILL OPERATE PRECISELY AS DESCRIBED, OR THAT ALL EFFORS WILL BE CORRECTED, OR BE FREE FROM INFENCTION BY VIRUSES, BUGS, OR OTHER DEFECTS THAT CAN IMPACT SOFTWARE, DELIVERABLES, WEB APPLICATION OR API (d) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (d) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, THEIR MERCHANTABILITY OR OTHERWISE .
8.4. Remedies on Breach of Warranty. In the event of any breach of the warranty during the Warranty Period set forth in Section 6.1, Customer demonstrates to POWERPAY that the Software as a Service does not perform materially in accordance with its specifications (“Defect”), then POWERPAY, within ten (30) business days of receiving written notice of such a Defect, shall respond to Customer with either (a) a statement that POWERPAY has in good faith and using reasonable efforts not yet been able to duplicate the alleged Defect, or (b) a plan indicating whether POWERPAY intends, at its option and expense, to: (1) use commercially reasonable efforts to correct the Defect; or (2) provide Customer with replacement IoT Hardware and Software as a Service of equivalent or greater functionality. If POWERPAY determines that neither of the preceding options is commercially feasible, then POWERPAY shall return to Customer any Hardware and Subscription Fees paid for the Software as a Service in question, and in that event, any subscriptions granted by POWERPAY to Customer for the Software as a Service shall terminate.
8.5. No Warranty. POWERPAY does not warrant that: (a) the Software as a Service has been prepared to meet Customer’s individual requirements, except those defined in the relevant Job Order; (b) the Software as a Service will operate in circumstances that Customer may select over and above those set out herein and in the relevant Job Order; (c) the Software as a Service will operate uninterrupted or error free; (d) all errors in the Software as a Service can be corrected. Likewise, Customer acknowledges that: (a) the Software as a Service has not been produced to meet Customer’s individual specification, except those defined in the relevant Job Order; (b) the Software as a Service cannot be tested in advance in every possible operating combination and environment;(c) it is not possible to produce software known to be error free in all circumstances. Customer acknowledges that the Software as a Service is not deaccepted, made, or intended for any use in hazardous environments requiring fail-safe performance, such as, but not limited to, in the operation of nuclear facilities, aircraft control, communications, or navigation, air traffic control, medical devices, national defense, nuclear applications, missile and defense systems that could lead directly to death, personal injury or severe physical or environmental damage (“Unintended Uses”). In the event any Customer’s Products incorporating any Software as a Service is used for any Unintended Uses, Customer shall indemnify and hold POWERPAY and its suppliers, successors and assigns harmless from any claims, losses, costs, damages, expenses, or liability arising out of or in connection with any such Unintended Uses.
8.6. Limitation of Liability. NEITHER PARTY IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, OR DATA. LICENSOR IS NOT LIABLE FOR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
9.INTELLECTUAL PROPERTY.
9.1. Use of Intellectual Property and Proprietary Notices. During the term of this Agreement, either party may use the other party’s trademarks in their advertising and promotional media; provided that the party using such marks conspicuously indicates in each such medium that such trademarks are Trademarks of the owner of such mark and such use inures to the benefit of the owner of such mark. For example, Customer will ensure that all Customer products incorporating the Software as a Service that are in Customer’s possession or control incorporate copyright, trademark, and other proprietary notices in the same manner that POWERPAY incorporates such notices for the Software as a Service, or in any manner reasonably requested by POWERPAY. Nothing herein will grant to Customer any right, title or interest in the POWERPAY Trademarks, Deliverables, or other POWERPAY property unless so indicated herein. Upon termination of this Agreement for any reason, each party will immediately cease all use of the other party’s intellectual property, including patents, trademarks, copyrights, whether issued or pending.
9.2. Intellectual Property Liability Limitation. POWERPAY shall have no liability for any claim of infringement based on or to the extent arising from: (1) use of an outdated or unaltered release of any Hardware and software as a Service if such infringement would have been avoided by use of updated and amended Software as a Service which had been offered to Customer; (2) the combination or use of the Software as a Service with hardware or software not furnished or approved in writing by POWERPAY (for example, use in violation of Authorized Use, Authorized Sites, Authorized Platforms); or (3) the use of any Software as a Service that has been modified or altered other than by POWERPAY or with POWERPAY’s prior written permission but only to the extent that the unmodified version of the Software as a Service would not have infringed. POWERPAY is not responsible for any problems of any nature arising from the use of IoT Hardware and Software as a Service for purposes for which it was not deaccepted, (the purposes for which it was deaccepted being those clearly apparent from the Documentation and related materials). Either Party’s total liability under or in connection with this Agreement whether for breach of contract, breach of warranty, negligence, strict liability in tort or otherwise will not in aggregate exceed the total amount of the Subscription Fee(s) paid by Customer to POWERPAY under this Agreement.
10.INDEMNITY.
10.1. Infringement Indemnity. POWERPAY indemnifies, defends, and holds Customer harmless from and against any claims, actions, or demands alleging that the IoT Hardware and Software as a Service infringes any patent, copyright, or other intellectual property right of a third party. If use of the Software as a Service is permanently enjoined for any reason, POWERPAY, at POWERPAY’s option, and in its sole discretion, may: (a) modify the Software as a Service so as to avoid infringement; (b) procure the right for Customer to continue to use and reproduce the Software as a Service and Documentation; or (c) terminate this Agreement and refund to Customer Subscription Fees paid. POWERPAY shall have no obligation under this Section 8.1 for or with respect to, and Customer indemnifies, defends, and holds POWERPAY harmless from and against all claims, actions, or demands alleging infringement that arise as a result of (a) the combination of non-infringing items supplied by POWERPAY with any items not supplied by POWERPAY; (b) modification of the Software as a Service or Documentation by Customer or by POWERPAY in compliance with Customer’s designs, specifications, or instructions; (c) the direct or contributory infringement of any process patent by Customer through the use of the Software as a Service; (d) continued use by Customer of other than the latest release of the Software as a Service or continued allegedly infringing activity by Customer after Customer has been notified of the possible infringement; (e) any modification or derivative work made by POWERPAY based on Customer’s instructions; and, (e) abuse, misuse, neglect or use of Software as a Service not authorized by this Agreement. POWERPAY’s Subscription Fee(s) and POWERPAY’s other charges to Customer under this Agreement as well as Customer’s liability are determined on the basis of the following limitations and exclusions of liability. Both parties expressly agree that these limitations are reasonable because of (inter alia) the likelihood that the quantum of damages awardable to one party for a breach by the other party of this Agreement would be disproportionately greater than the value of this Agreement to either party.
10.2. Other Indemnity. Customer is responsible and indemnifies and holds POWERPAY harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Customer’s use or reproduction of the Deliverables, including Software as a Service, pursuant to this Agreement.
10.3. Condition to Indemnification. Should any claim subject to indemnity be made against POWERPAY or Customer, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. POWERPAY will control the defense and settlement of any claim under Section 8.1 and Customer will control the defense and settlement of any claim under Section 8.2. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.
11. CONFIDENTIALITY.
11.1. Confidentiality. POWERPAY acknowledges that the Customer information relating to the business and operations of the Customer that POWERPAY learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the Customer. Likewise, Customer acknowledges that the Software as a Service and Documentation, and all information relating to the business and operations of the POWERPAY that Customer learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the POWERPAY. During the period this Agreement is in effect, and at all times afterwards, each party, and its employees, contractors, consultants, Subscribers, and agents, will:(a) safeguard the confidential information of the other party with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of the other party.
11.2. Limitations on Confidentiality Restrictions. Section 9.1 does not apply to any information that: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the receiving party with the disclosing party’s approval; and (f) is demonstrably and independently developed by the receiving party without any use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information under this agreement. The parties will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of three (3) years from the date of termination of this Agreement. Nothing in this agreement shall be construed to prohibit a party from reporting conduct to, providing truthful information to or participating in any investigation or proceeding conducted by any federal or state government agency or self-regulatory organization.
11.3. Injunctive Relief for Breach. POWERPAY and Customer acknowledge that any breach of Section 9.1 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity.
12.EXPORT CONTROLS AND RESTRICTED RIGHTS.
12.1. Export Controls. The parties in carrying out their obligations under this Agreement will abide by foreign and domestic laws, including export laws. The Software as a Service, the Documentation, and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer shall not export the Software as a Service or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Customer represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls. Customer and all Customer’s customers must comply with all foreign and domestic laws, including U.S. export regulations and controls.
13.GENERAL.
13.1. Assignment. Neither party may assign, sublicense, or transfer its rights or delegate its obligations under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld, delayed, or conditioned. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
13.2. Relationship of Parties. Each of POWERPAY and Customer shall be related to the other as an independent contractor and neither shall have any right to make any representation or warranties on behalf of the other or in any manner to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party or in any way to bind the other party in any respect. Customer is not an agent for POWERPAY nor are any of its employees’ agents of POWERPAY. Neither party is a legal representative of the other party.
13.3. Cumulative Rights. Except as specifically stated, no remedy specified above is intended to be exclusive, and the rights and remedies specified herein are in addition to any other remedies at law or in equity.
13.4. Waivers. No waiver of any right or provision of this Agreement shall be deemed to be a waiver of or release of a party from compliance with the performance of or compliance with the same or any other obligation under this Agreement in the future. No Agreement shall in any manner impair the exercise of any such right accruing to such party thereafter.
13.5. Severability. Each term, condition and provision of this Agreement shall be valid and enforced to the fullest extent permitted by Kenyan law. If there is any conflict between any term, condition, or providing of this Agreement and any statue, law, ordinance, order, rule or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be limited only to the extent necessary to bring it within such legal requirements and the remainder of this Agreement shall not be affected thereby.
13.6. Binding Effect. Agreement shall be binding on and for the benefit of POWERPAY and Customer and their respective successors and assigns.
13.7. Amendment. This Agreement may not be amended, in whole or in part, except as agreed to in writing and accepted by an authorized representative of both POWERPAY and Customer.
13.8. Force Majeure. POWERPAY shall not be liable to Customer for any alleged or actual loss or damages resulting from failure to perform due to acts of God, natural disasters, acts of civil or military authority, government priorities, fire, floods, epidemics, quarantine, energy crises, war, riots, or any other circumstances beyond POWERPAY’s reasonable control. POWERPAY shall promptly notify the Customer of such event.
13.9. Choice of Law and Dispute Resolution. Any and all matters of dispute between the parties to this Agreement, whether arising from the Agreement itself or arising from alleged extra-contractual facts prior to, during or subsequent to the Agreement, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of the Agreement, shall be governed by, construed, and enforced in accordance with the laws of the Republic of Kenya, not including its choice of laws rules, but including its statutes of limitations, regardless of the legal theory upon which such matter is asserted. The parties shall be any action under this Agreement in the Republic of Kenya. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer and POWERPAY will attempt to settle any claim or controversy arising out of this Agreement through negotiation or a form of non-binding mediation prior to commencement of court proceedings. Provided however, that this provision shall not be applicable to any question, dispute, or claim involving the existence or validity of any intellectual property right and/or the infringement or unauthorized use of any intellectual property right. Any dispute which cannot be resolved between the parties through negotiation or mediation within thirty (30) days of the date of the initial demand for it
by either party may then be submitted to arbitration under the rules of the JAMS by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the two-party representatives shall, between themselves, chose an arbitrator.
13.10. Entire Agreement. This Agreement, along with the Exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement. The parties also intend that this complete, exclusive, and fully integrated statement of their agreement may not be supplemented or explained (interpreted) by any evidence of trade usage or course of dealing. It supersedes any terms or conditions contained on printed forms submitted with Job Orders, purchase orders, sales acknowledgements, or invoices. No alteration or modification of this Agreement will be binding upon either POWERPAY or Customer unless made in writing and accepted by an authorized representative of each. No third parties shall be direct third-party beneficiaries of this Agreement. The parties agree that this is a fully negotiated Agreement. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
13.11. Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, by email or sent by overnight courier service and addressed per the information on file with POWERPAY.
13.12. References, Headings and Language. The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, or re-enacted. Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies, corporate, unincorporated associations, and partnerships and vice versa. References to the whole shall include the part and vice versa.
13.13. Effect of Purchase Order. In the event of any conflict between this Agreement and the terms and conditions of Job Order or similar document pursuant to which Customer acquired the subscription granted by this Agreement, the terms and conditions of this Agreement shall control.