Terms and Conditions

Part I. General

1. Definitions

The terms contained in the Agreement and these Terms and Conditions initially capitalized are defined and have the meaning as set out below:

Agreement

Each agreement entered into by and between SBS and Client, including all associated Orders, to which these Terms and Conditions apply.

Applicable Law

(i) Then-current national, local or other law, rule, regulation, enforceable regulatory guidance, order, judgment, decree, or ruling in any jurisdiction in which Customer accesses and uses the SBS Platform and Services; and (ii) all regulations, guidelines, conditions, policy rules and/or other requirements of Operators in the country where the Service is delivered.

Client

The Party with whom SBS enters into this Agreement.

Client Materials

All information, data, content and other materials, in any form or medium, that is provided by or on behalf of Client through the SBS Platform or to SBS.

SBS

The private limited liability company Suntech Business Solutions Ltd.

SBS IP

The SBS Platform, the Service, all improvements, modifications or enhancements to, or derivative works of, the foregoing, and all Intellectual Property Rights in and to any of the foregoing.

Data Protection Laws

The data protection laws and regulations of the country in which Client is established and any Data Protection Laws applicable to Client and/or SBS in connection with the Agreement.

End User

A natural person or entity who is authorized by Client to make use of the Client's End User Services.

Working Day

Monday to Friday from 8:00 a.m. to 5:00 p.m. EAT – Eastern Africa Time, excluding generally recognized public holidays in Kenya.

2. Scope

2.1

These Terms and Conditions apply to all Orders, Order Forms and agreements between SBS and the Client, unless the Parties have expressly agreed otherwise in writing.

2.2

The applicability of any general (purchasing) terms and conditions used by Client, or any other terms and conditions other than this Agreement and Order Forms, are hereby expressly excluded.

2.3

The Parties agree to contract electronically, in accordance with Applicable Laws, and that electronic signatures will have the same weight and effect as originals. Reference to "writing" anywhere in this Agreement shall be considered all communication in either electronic or paper format.

2.4

Applicable Law applies to the End User Services offered by Client to its End Users. Client shall familiarize itself with all Applicable Law (including by procuring independent legal advice if needed) applicable to the use of the Service and offering of the End User Service.

3. Prices, Payment and Taxes

3.1

The currency indicated in the price list of the Agreement will be the currency to be used by the Client to settle the invoice. If no currency was agreed on between the Parties the currency will be Kenyan Shilling (KES). All prices stated are exclusive of value added tax (VAT) and/or any other taxes, charges or levies imposed by any government authority.

3.2

The applicable prices and rates are listed on the website of SBS and/or described in the Agreement. Unless a fixed price has been expressly agreed in an Order Form, SBS reserves the right to change prices and rates without notice.

3.5

The Client shall pay all invoices without suspension, set-off or deduction within fourteen (14) days of the invoice date, unless the Agreement explicitly contains different payment terms.

3.6

In the event that Client fails to pay SBS the amounts due within the agreed period, 2.5% interest per month shall be applied and will fall due accordingly by the Client on the outstanding amount without any requirement from SBS to communicate a notice of default.

                    Note: Timely payment of all amounts due is a condition precedent to all of SBS's obligations and Client's rights under this Agreement.
                

4. Obligations

4.1

Client will ensure a secure, continuously working connection at its own cost to the SBS Platform.

4.2

Client shall ensure that access to the connection and the account of Client is limited to authorized employees of Client and that log-in credentials are stored securely. It is not permitted to authorize use to other persons and/or third parties.

4.3

Client is responsible for the sending and/or delivery of Traffic up to the point of interconnection with the Platform of SBS. Client is responsible for appropriate encryption and security of its Traffic.

4.4

Client shall only use the Services for their intended and normal purpose and/or purposes as agreed and described in the Agreement. Without limitation, Client shall not:

Reverse engineer or otherwise attempt to gain unauthorized access to any component of the SBS Platform
Resell the SBS Platform or otherwise use or allow any person to use the SBS Platform or Service
Interfere with, or disrupt the integrity or performance of, the SBS Platform
Collect data from or regarding the SBS Platform, save for Service features provided by SBS
Use the Service, SBS Platform or any other SBS Confidential Information for benchmarking or competitive analysis

4.5

Client is responsible for the content of Traffic sent by Client, the lawfulness of the Traffic and the identity of the relevant End User. Client guarantees that it complies with Applicable Law and does not infringe third-party rights. Client will not send any unsolicited traffic, nor other unethical, illegal, or fraudulent traffic or content.

5. Client Warranty and Indemnification

5.1

Client represents and warrants that:

It has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Client Materials
SBS's use of the Client Materials in accordance with this Agreement will not violate any Applicable Law
The promotion of the End User Service will not infringe the Intellectual Property Rights of third parties

5.2

Client will indemnify, defend and hold SBS harmless for all losses, damages, liabilities and costs (including reasonable attorneys' fees) incurred by SBS resulting from any claim, suit or proceeding brought by a third party against SBS arising from the End User Service or Client Materials.

6. Service Availability

6.1

Services are rendered and made available in accordance with the SBS Service Level Agreement ('SLA').

6.2

If the Client acts contrary to an obligation under clause 4, Applicable Law, Operator guidelines or the obligation to pay the amounts due to SBS within the agreed payment terms, SBS is entitled to suspend provision of the Service without limitation to any other remedy available to SBS.

                    Important: If any monthly fees are due under the Agreement the Client remains liable for payment of such fees for the period that the provision of the Service is suspended.
                

7. Setting-off

7.1

SBS is entitled to set off the amounts the Client owes to SBS against the amounts SBS owes to the Client.

8. Disputes Regarding Amounts Payable

8.1

If the Client disputes the accuracy of an invoice sent by SBS, Client will provide a detailed complaint within the payment term applicable to the invoice in question by written notice to SBS.

8.2

Client may only dispute an invoice if the amount in dispute is greater than KES 20,000 (excluding taxes) and greater than three (3%) percent of the invoice amount (excluding taxes).

9. Confidentiality and Publicity

9.1

"Confidential Information" means any information that one Party provides to the other Party in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential.

9.2

The Receiving Party will maintain the Disclosing Party's Confidential Information in strict confidence, and will not use the Confidential Information except as necessary to perform its obligations under this Agreement.

9.3

Each Party's obligations with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party.

11. Intellectual Property

11.1

Subject to the limited rights expressly granted hereunder, SBS reserves and, as between the Parties, SBS will solely own, all rights, title and interest in and to the SBS IP. No rights are granted to Client hereunder other than as expressly set forth herein.

12. Liability

12.4

In no event will SBS's total liability in connection with this Agreement exceed the amount equal to the average monthly invoice of Client, calculated over the twelve (12) months preceding the event giving rise to liability, with a maximum of one million Kenyan Shilling (KES 1,000,000).

12.5

The limitations on liability specified in this Clause shall not apply in the event of willful intent or gross negligence by either party, or in case of personal injury or death.

14. Duration and Termination of the Agreement

14.1

The initial term of this Agreement begins on the Effective Date and expires at the end of the initial term specified in the Order Form (the "Initial Term"). If the Initial Term is not specified in the Order Form, then the Initial Term will expire one (1) year from the Effective Date.

14.2

Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term, or for a period of one (1) year, whichever is shorter, unless either Party terminates the Agreement in writing by giving three (3) months' notice.

16. Applicable Law and Disputes

16.1

This Agreement will be governed by and construed in accordance with the laws of Kenya without giving effect to any principles of conflict of laws.

16.2

Any dispute arising out of or in connection with this Agreement shall be finally settled by the competent court in Nairobi, Kenya.

Part II. Data Processing

This section outlines SBS's obligations as a data processor and the handling of personal data in accordance with applicable Data Protection Laws.

Key Obligations

SBS shall Process Personal Data in accordance with this Part II and the Agreement
SBS shall implement appropriate Technical and Organizational Measures to ensure security
SBS shall notify Client promptly of any Personal Data Breach
SBS shall maintain complete records of Processing activities
SBS shall assist Client with Data Subject Requests and compliance obligations

Part III. Messaging

25. Additional Terms and Conditions SMS Messaging

25.1

The messaging account(s) of Client have a standard message limit of 50,000 messages. SBS will send Client an electronic notice (e-mail) when Client reaches 75% of the standard message limit.

25.2

Client may request an increase of the applicable message limit. SBS may, in its sole discretion, modify (increase or decrease) or cancel the message limit at any time by email notification to Client.

27. WhatsApp Business Solution

                    Important: The provision of WhatsApp Business Solution is expressly conditional upon the positive outcome of and approval by SBS following the SBS client screening procedure (Know your Customer or "KYC"), onboarding, screening and acceptance of Client by WhatsApp.
                

Part IV. Voice

28.1

Client represents and warrants that it will refrain from using the Voice Services for unauthorized purposes, including but not limited to:

Using for other than normal use as intended by SBS
Infringing intellectual property rights of third parties
Misusing allocated access codes
Teasing, spamming, offending, or hacking
Establishing connections on a large scale to sales numbers

28.5

Client is required to send along the correct information with regard to the location where the call is initiated/set up ("Caller" or "Sender ID") with every call. Withholding that actual location information is considered unreasonable use of the Service and is strictly forbidden.

Part VI. Pre-paid

31.3

Pre-paid credits and balance can be used by the Pre-Paid Client the day following the day the amount is received by SBS. Pre-paid credit is non-refundable and will expire twelve (12) months after the date on which the Pre-Paid Client purchased the prepaid balance.

31.6

SBS is entitled to refuse a Pre-Paid Client registration to its' service without giving reasons and to terminate an existing account without giving reasons. The account will be deleted if the account is not charged within three (3) months of registration.

Part VII. Data Services

32.1

Client agrees to ensure compliance with these terms and conditions. In case of conflict between the Terms and Conditions and the Data Services Terms, the latter prevail.

32.4

Client is responsible for the Data, the delivery of the Data and the creation and management of customer profiles and guarantees that the Data provided is free from any known viruses, worms, trap doors, time bombs, logic bombs, Trojan horses or similar items.

32.7

SBS's liability for Data Services shall be limited in aggregate to an amount equal to the average monthly invoice of Client with a maximum of one hundred thousand Kenyan Shilling (KES 100,000).

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