The Kwaduara Limited (Kwara) SACCOs operations management software solution general terms and conditions for usage by you (the Customer) are as follows, and which terms and conditions are hereby deemed incorporated into the Licence Agreement between Kwara and the Customer:

1. Definitions

1. 1.1 In these general terms and conditions, the following terms shall have the following meaning ascribed to them:
1. 1.1.1

   Account Holder means each of the Customer’s clients, customers and/or members, who has opened, operates and maintains an account with the Customer;

2. 1.1.2

   Business Day means any day (other than Saturday, Sunday, national day or gazette public holiday in Kenya) on which banking institutions in Kenya are generally open for the conduct of banking business;

3. 1.1.3

   Force Majeure Event has the meaning ascribed to it in clause 9.1;

4. 1.1.4

   General Terms and Conditions means these general terms and conditions, together with the Licence Agreement;

5. 1.1.5

   Intellectual Property has the meaning ascribed to it in clause 12.1.3;

6. 1.1.6

   Kwara Channels means the mediums provided by Kwara to the Customer for use by the Account Holders to make deposits, withdrawals and apply for loans, including but not limited to unstructured supplementary service data (USSD), mobile banking app, portal, online banking and agency banking;

7. 1.1.7

   Kwara Software means together the Kwara Channels and the Kwara's SACCO operations management software solution which is cloud hosted, for managing the Customer’s front office and back office operations as well as submission of credit information to licensed Credit Referencing Bureaus via application programming interface (API) and is built on a core banking platform to extend the Customer’s core banking platform capabilities and which Kwara shall issue a non-exclusive license to the Customer to use under these General Terms and Conditions;

8. 1.1.8

   Licence Agreement means the licence agreement executed between Kwara and the Customer, incorporating these General Terms and Conditions;

9. 1.1.9

   Marketing Information has the meaning ascribed to it in clause 2.4;

10. 1.1.10

    Material means any systems, equipment, hardware, software, literary works, specifications, design documents, processes, methodologies, programs, program listings, programming tools, documentation, data bases, reports, drawings and other items or work products and other tangible or intangible assets to be used with respect to the Kwara Software and the term Materials shall be construed accordingly; and

11. 1.1.10

    Material means any systems, equipment, hardware, software, literary works, specifications, design documents, processes, methodologies, programs, program listings, programming tools, documentation, data bases, reports, drawings and other items or work products and other tangible or intangible assets to be used with respect to the Kwara Software and the term Materials shall be construed accordingly; and

12. 1.1.11

    Subscription Fee means the fee payable by the Customer to Kwara pursuant to the Licence Agreement, with respect to the Kwara Software; and

13. 1.1.12

    Term means the term of the Licence Agreement.

2. 1.2 Unless the context otherwise requires, in these General Terms and Conditions (including the Recitals):
1. 1.2.1 words denoting the singular number shall include the plural and vice versa and reference to the masculine includes a reference to the feminine gender and neuter and vice versa and words importing the whole shall be treated as including a reference to any part thereof;
2. 1.2.2 a person includes a natural person, corporate or unincorporated body, state agency, governmental authority or firm (whether or not having separate legal personality) and that person's personal representatives or successors (as the case may be) or permitted assigns;
3. 1.2.3 references to indemnifying any person against any circumstance includes indemnifying and keeping that person harmless from any actions, claims and proceedings from time to time made against that person and all proven direct loss or damage and all payments, liabilities, costs or expenses made, incurred or suffered by that person as a consequence of or which would not have arisen but for that circumstance, provided always that no indemnification shall apply in respect of any loss of profits, goodwill or business or any other indirect or consequential losses;
4. 1.2.4

   the expression Party shall mean each of Kwara and the Customer, and Parties shall be construed accordingly;

5. 1.2.5 clauses headings are inserted for convenience only and shall not affect the interpretation or construction of these General Terms and Conditions;
6. 1.2.6 unless the context otherwise requires, a reference to any Party shall include that Party's successors and permitted assigns;
7. 1.2.7 a reference to writing or written includes e-mail;
8. 1.2.8 any obligation on a Party not to do something includes an obligation not to agree or allow that thing to be done by another person so far as this is within that Party’s power or control;
9. 1.2.9 a reference to these General Terms and Conditions or to any other terms and conditions, agreement or document referred to in these General Terms and Conditions is a reference to these General Terms and Conditions or such other terms and conditions, agreement or document as varied or novated (in each case, other than in breach of the provisions of these General Terms and Conditions, and in accordance with the law to which those terms and conditions, agreement or document are subject and the particular conditions (if any of such terms and conditions, agreement or document) from time to time;
10. 1.2.10 references to clauses are to be construed as references to the clauses to these General Terms and Conditions; and
11. 1.2.11 Unless the context otherwise requires, any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms

NOW THESE GENERAL TERMS AND CONDITIONS witnesseth as follows:

2. The Kwara Software and Kwara Channels

1. 2.1 Kwara is offering the Kwara Software and the Kwara Channels to the Customer to facilitate the efficient management of the Customer’s business operations efficiently, improve the Customer’s staff productivity and add value to the the Account Holders.
2. 2.2 In consideration of the Customer paying the Subscription Fee, Kwara grants the Customer a non-exclusive licence during the Term to use the Kwara Software.
3. 2.3 Use of the Kwara Software by the Customer shall be restricted to the manner authorised by Kwara for purposes of processing and controlling the Account Holder’s data and information for the Customer’s normal operation purposes (which shall not include allowing the use of the Software by, or for the benefit of any other person other that the Customer and the Customer’s authorised employees and Account Holders).
4. 2.4 Any samples or advertisements issued by Kwara and any descriptions of the Kwara Software contained in Kwara’s bronchures, marketing materials, press releases, website, pitch presentations, profile and/or website (the Marketing Information) are issued or published for the sole purpose of giving an approximate idea of the Kwara Software. The Marketing Information shall not form part of the Licence Agreement and these General Terms and Conditions nor have any contractual force.
5. 2.5 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the Kwara Software in whole or in part.
6. 2.6 The Customer shall not:
1. 2.6.1 sub-license, assign or novate the benefit or burden of the Licence Agreement in whole or in part; and/or
2. 2.6.2 deal in any other manner with any or all of its rights and obligations under the Licence Agreement other than is expressly authorised under the Licence Agreement.
7. 2.7 The Customer shall always ensure that Kwara’s competitor(s) shall not access the Kwara Software except with Kwara’s prior written consent.
8. 2.8 Kwara grants the Customer a personal, limited, non-exclusive, revocable, non- transferable licence, without the right to sublicense, to electronically access and use the Kwara Software in accordance with the Licence Agreement and these General Terms and Conditions.
9. 2.9 The Customer shall not, nor may the Customer permit any third party to do any of the following:
1. 2.9.1 access or attempt to access the Kwara Software’s systems, programs or data that are not made available for public use;
2. 2.9.2 copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the Marketing Information;
3. 2.9.3 permit any unauthorised third party to use and benefit from the use of the Kwara Sosftware;
4. 2.9.4 transfer any rights granted to the Customer under the Licence Agreement;
5. 2.9.5 work around any of the technical limitations of the Kwara Software, use any tool, except tools provided by Kwara, to enable features or functionalities that are otherwise disabled in the Kwara Software, or decompile, disassemble or otherwise reverse engineer the Kwara Software;
6. 2.9.6 intentionally perform or attempt to perform any actions that would interfere with the proper working of the Kwara Software, prevent access to or use of the Kwara Software by any of the Account Holders, or impose an unreasonable or disproportionately large load on the Kwara Software; or
7. 2.9.7 otherwise use the Kwara Software except as expressly allowed under the Licence Agreement.
10. 2.10 Third party softwares: Kwara and Kwara’s personnel may from time to time recommend third party software or other products and services for the Customer’s consideration. Kwara makes no representation or warranty whatsoever regarding such third party products and services. The Customer’s use of any products and services not provided by Kwara is governed by the terms of the Customer’s agreement with the provider of those products and services, and is at the Customer’s sole risk. Kwara is not responsible in any way for the third party product and services performance, features or failures.
11. 2.11 Suspension of the Kwara Software: Kwara may suspend the Kwara Software at any time without liability if:
1. 2.11.1 Kwara reasonably believes that the Customer or Account Holders are using the Kwara Software in breach of the Licence Agreement and/or these General Terms and Conditions;
2. 2.11.2 the Customer fails to cooperate with Kwara's reasonable investigation of any suspected violation of the Licence Agreement or these General Terms and Conditions;
3. 2.11.3 Kwara reasonably believe there is an attack on the Customer's or Account Holders Material in relation to the Kwara Software, which is accessed or manipulated by a third party without Kwara's consent;
4. 2.11.4 Kwara is required by law or a regulatory or government body to suspend the Kwara Software; or
5. 2.11.5 there is another event for which Kwara reasonably believe that the suspension of Kwara Software is necessary to protect the Kwara Software or the Customer and Account Holders. Kwara will give the Customer advance notice of any suspension under this clause at least twelve (12) hours in advance, if practical, but if not practical, Kwara may suspend the Kwara Software without prior notice. Notwithstanding the foregoing, Kwara may determine, in Kwara's reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Kwara Software or Kwara's clients from imminent and significant operational, legal, or security risk. Kwara shall resume providing the Kwara Software to the Customer as soon as the above mentioned reasons for suspension cease to exist.

3. Kwara’s Obligations

1. 3.1 Kwara undertakes to:
1. 3.1.1 provide basic support for the Kwara Software to the Customer at no additional costs (save for the Subscription Fee) and use commercially reasonable efforts to make the Software available 24/7 except when:
1. 3.1.1.1 there is a planned downtime, scheduled maintenance or preventive maintenance, for which Kwara will give the Customer a minimum of six (6) hours’ prior notice through the Kwara Software, where practical or within such other reasonable period as may be practical in the circumstances;
2. 3.1.1.2 there is an emergency downtime or curative maintenance, in which case prior notice will not be applicable and/or practical; and
3. 3.1.1.3 the unavailability is due to a Force Majeure Event.

4. The Customer’s Obligations

1. 4.1 The Customer hereby unequivocally, unconditionally and irrevocable agrees to:
1. 4.1.1 promptly pay the Subscription Fee as and when due;
2. 4.1.2 use the Kwara Software strictly in accordance with the Licence Agreement and these General Terms and Conditions;
3. 4.1.3 cooperate with Kwara with respect to Kwara fulfilling any of Kwara’s obligation under the Licence Agreement or these General Terms and Conditions;
4. 4.1.4 provide Kwara with reasonable access to all necessary Customer’s support personnel, and ensure that such personnel are technically qualified (including but not limited to being qualified academically and possession the requisite skills, experience and competence);
5. 4.1.5 provide Kwara with reasonable access to the Customer’s relevant facilities, premises, servers (both onsite and offsite), devices, computers, network, equipment, components, hardware and software as and when required by Kwara;
6. 4.1.6 report any defects or malfunctions in the Kwara Software through the designated support intake channel; and
7. 4.1.7 ensure that the Account Holder’s data and information is handled in compliance with the relevant data privacy regulations.
1. 4.2 The Customer shall:
1. 4.2.1 be responsible for the accuracy, quality and legality of the Customer's and Account Holders data and of the means by which the Customer acquired such data;
2. 4.2.2 use commercially reasonable efforts to prevent unauthorised access to or use of the Kwara Software, and notify Kwara promptly of any such unauthorised access or use;
3. 4.2.3 use the Kwara Software only in accordance with the applicable laws and government regulations;
4. 4.2.4 not:
1. 4.2.4.1 make the Kwara Software available to anyone other than the Customer's authorized employees and Account Holders
2. 4.2.4.2 use the Kwara Software to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, knowingly use the Kwara Software to store or transmit malicious code;
3. 4.2.4.3 interfere with or disrupt the integrity or performance of the Kwara Software or third-party data contained therein; or
4. 4.2.4.4 attempt to gain unauthorised access to any of Kwara’s Material.

5. Data Protection and return of information

1. 5.1 Kwara may control and process the Customer’s and Account Holder’s personal data and information and the Customer may control and process the Account Holder’s personal data and information with respect to:
1. 5.1.1 the Customer or Account Holders accessing the Kwara Software; and
2. 5.1.2 the Customer or Account Holders registering themselves in the Kwara Software or subscribing thereto.
2. 5.2 Kwara may use the Customer’s and/or the Account Holder’s personal data and/or information for the following purposes:
1. 5.2.1 pre-training and full training of the Customer’s operation staff on the day to day use of the Kwara Software;
2. 5.2.2 supporting the Customer in extracting missing or incorrect data;
3. 5.2.3 importing the Customer’s or Account Holders information into the sandbox and production environment;
4. 5.2.4 billing the Customer for the use by the Customer and/ or Account Holders of the Kwara Software;
5. 5.2.5 verifying the Customer’s and/or Account Holders’ personal data and/or information through the available government databases in order to comply with any legal and/or regulatory requirements;
6. 5.2.6 keeping the Customer and/or Account Holders informed of any new product that Kwara might develop;
7. 5.2.7 in business practices including quality control, training and effective Software operations;
8. 5.2.8 preventing and detecting fraud and other crimes; and
9. 5.2.9 administer the Kwara Software.
3. 5.3 The Customer shall be solely responsible for procuring the Account Holders consent with respect to Kwara processing and controlling the Account Holders personal data and information. The Customer hereby unequivocally, irrevocably and unconditionally grants Kwara the permission to process the Customer’s personal data and information with respect to the Kwara Software and the services to be provided by Kwara to the Customer herein.
4. 5.4 The Customer shall ensure that it informs the Account Holders of their rights with respect to the Account Holders’ personal data and information, including:
1. 5.4.1 informing the Account Holders of the use to which the Account Holders’ personal data is to be put;
2. 5.4.2 the Account Holders accessing the specific Account Holders’ personal data in custody of the Customer;
3. 5.4.3 the Account Holder objecting to the processing of all or part of the Account Holder’s personal data;
4. 5.4.4 correction of the Account Holders false or misleading data (if any); and
5. 5.4.5 deletion of false or misleading data about the Account Holders.
5. 5.5 The Parties shall always ensure that in processing the Account Holders’ and each other’s personal data:
1. 5.5.1 they acts in accordance with the right to privacy of the data subject;
2. 5.5.2 they process such personal data lawfully, fairly and in a transparent manner;
3. 5.5.3 such data is collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes;
4. 5.5.4 such data is adequate, relevant, limited to what is necessary in relation to the purposes for which it is processed;
5. 5.5.5 the data is collected only where a valid explanation is provided whenever information relating to family or private affairs is required;
6. 5.5.6such data is accurate and, where necessary, kept up to date, with every reasonable step being taken to ensure that any inaccurate personal data is erased or rectified without delay;
7. 5.5.7such data is kept in a form which identifies the data subjects for no longer than is necessary for the purposes which it was collected; and
8. 5.5.8the personal data is not transferred outside Kenya, unless there is proof of adequate data protection safeguards or consent from the data subject.
6. 5.6 The Parties may have a respective designated data protection officer within their organisations, possessing the requisite qualifications which may include knowledge and technical skills in matters relating to data protection. Such data protection officers shall:
1. 5.6.1 advise Kwara and the Customer and their respective employees on data processing requirements;
2. 5.6.2facilitate capacity building of each of the Parties’ employees involved in data processing and controlling operations;
3. 5.6.3ensure that each of Kwara and the Customer comply with data protection legislation and all applicable laws thereof;
4. 5.6.4provide advice on data protection impact assessment; and
5. 5.6.5co-operate with any authority on matters relating to data protection.
7. 5.7 The Parties shall retain the data subject’s personal data only as long as may be reasonably necessary to satisfy the purpose for which it is processed unless the retention is:
1. 5.7.1 required or authorised by law;
2. 5.7.2reasonably necessary for a lawful purpose;
3. 5.7.3authorised or consented by the data subject; or
4. 5.7.4 for historical, statistical, journalistic literature and art or research purposes.
8. 5.8 The Parties shall delete, erase, anonymise or pseudonymise the data subject’s personal data not necessary to be retained in a manner as may be specified at the expiry of the retention period.

6. Exclusion of liability

1. 6.1 Usage limitations: The Kwara Software may be subject to certain limitations, including, for example, limits on the number of users who can access the Kwara Software concurrently. The Customer shall always comply with Kwara Software’s usage limitation, as may be advised by Kwara from time to time.
2. 6.2 Kwara shall in no case be responsible towards the Customer and/or Account Holders for damages to or loss of data, information or other content in the course of use of the Kwara Software by the Customer and/or Account Holders, save where any such loss is caused due to Kwara's proven gross negligence.
3. 6.3 The Customer understands and agrees that Kwara is a service provider of information technology services and that Kwara may not audit, select or modify the information contained in these transmissions, except as required by law. In the event that a Court of competent jurisdiction makes any award of damages against Kwara (and/or Kwara's officers, employees, affiliates and their agents) with regard to a copyright infringement or any type of intellectual property claim, defamation claim, claim of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material and/or claim of infringement of data protection, privacy, criminal or other legislation attributable to any fault on the part of the Customer, Account Holders or the Customer's employees, agents, contractors, its customers or other third parties claiming under the Customer, then the Customer agrees to fully indemnify and hold harmless Kwara, Kwara’s officers, employees, affiliates and agents from and against any such damage and/or any costs or expense incurred in connection therewith.
4. 6.4 Kwara gives no representation and/or warranties with respect to the following:
1. 6.4.1 Kwara does not promise and/or warrant that the Kwara Software will be not have interruptions, be error-free, or completely secure. The Customer hereby acknowledges that there are risks inherent in internet connectivity that could result in the loss of the Customer’s and Account Holder’s privacy, confidential information, property, revenue and profit.
2. 6.4.1Implied and non-implied Warranties: Kwara disclaims any and all warranties not expressly stated in these General Terms and Conditions to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. The Customer is solely responsible for the suitability of the Kwara Software.
5. 6.5 The Customer shall be responsible for understanding the regulatory requirements applicable to the Customer’s business and for selecting and using the Kwara Software in a manner that complies with the applicable requirements.
6. 6.6 The Kwara Software is provided on an ‘as is’ and ‘as available’ basis. Use of the Kwara Software is at the Customer’s own risk. To the maximum extent permitted by applicable law, Kwara make no representations or warranties of any kind, express or implied, statutory or otherwise, and Kwara specifically disclaims any warranties of non-infringement or fitness for a particular purpose.
7. 6.7 Under no circumstances shall either Party be liable to the other Party for indirect, consequential, incidental, special or exemplary damages (even if that Party has been advised of the possibility of such damage). Kwara shall not be held liable in connection with the disputes and disagreements arising between the Customer, Account Holders and the Customer’s end users, employees, contractors and/or agents in all cases where such disputes and disagreements are not related to the subject of the Licence Agreement, or in connection with disputes and disagreements over the quality, volume and timeliness of provision of the Customer’s products to the Account Holders.

7. Limitation of liability

1. 7.1 In no event shall Kwara’s liability to the Customer under the Licence Agreement and these General Terms and Conditions be more than the aggregate amount of Subscription Fee to be received by Kwara from the Customer under the Licence Agreement during the Term or in the event that there will be no definite Subscription Fee to be received by Kwara from the Customer under the Licence Agreement during the Term as contemplated above, then in no event shall Kwara’s liability to the Customer be more than Kenya Shillings or its equivalent in any other currency.

8. Taxes on Subscription Fee

1. 8.1 Unless otherwise expressly provided in the Licence Agreement, all amounts due to Kwara under the Licence Agreement are exclusive of any value added, goods, services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, Tax). If Kwara is required by law to collect any Tax with respect to the Kwara Software, Kwara will invoice the Customer for such Tax and the Customer must pay Kwara the amount of the Tax that is due or provide Kwara with satisfactory evidence of the Customer’s exemption from the Tax. The obligation to pay any Tax that the Customer may be required to pay in connection with the Customer’s use of the Kwara Software or the Customer’s payment of amounts due to Kwara under the Licence Agreement shall be borne exclusively by the Customer. The Customer shall provide Kwara with accurate factual and adequate information and documentation (as determined by Kwara), to enable Kwara determine and ascertain if any Tax is due with respect to the Kwara Software and the Tax amount involved.
2. 8.2If the Customer is obliged to deduct any amount from the amount due to Kwara from the Customer on account of withholding tax or any other such tax, then the Customer shall top up such amount so that net amount received by Kwara on account of the Subscription Fee is as if no amount was deducted on account of such tax.
3. 8.3The Customer hereby undertakes to declare all income and sales taxes resulting from or in consequence of using the Kwara Software to the relevant tax authority and to pay all taxes levies and fees due on such income. Kwara shall not be liable to the Customer for any disclosure made to the relevant tax authority and the Customer shall indemnify Kwara from any loss, harm or damage arising from such disclosure to the relevant taxing authority. It is the Customer’s responsibility to determine what, if any, taxes apply to the payments the Customer receives and to collect, report and remit the correct tax to the relevant taxing authority. Kwara shall not be obligated to determine whether taxes apply, and Kwara shall not be responsible for collecting, reporting, or remitting any taxes arising from any transaction, unless the Parties agree otherwise in writing.

9. Force Majeure

1. 9.1Either Party shall be relieved of its liability for partial or total non-performance of obligations hereunder (except financial obligations), if such non-performance is due to force majeure circumstances which the affected Party could not reasonably anticipate and prevent. Such force majeure circumstances include natural calamities, acts of God, accidents, war, fires, public disorders, walkouts, revolutions, pandemics, lockdown, shortage of labour, hostilities, legislative acts, government action, government orders and directives of the authorities (Force Majeure Event), which directly or indirectly affect the availability or usage of the Kwara Software, as well as any other circumstances beyond the Parties' reasonable control. In the event of such circumstances, the timeframe for performing contractual obligations hereunder shall be extended for the duration of the relevant circumstances.
2. 9.2In the event of a Force Majeure Event, the affected Party shall notify the other Party in writing within twenty four (24) hours of the occurrence of such Force Majeure Event. The notice shall contain information about the nature of the circumstances in as much detail as possible and, if possible, an assessment of the Party’s impact on the possibility to perform that Party’s obligations hereunder and expected timeframe during which they can be performed.
3. 9.3The Party affected by a Force Majeure Event shall use its best endeavors to mitigate the effects of the Force Majeure Event. If a Force Majeure Event continues for a continuous period of over thirty (30) days, the other Party may terminate the Licence Agreement upon giving the Party affected by the Force Majeure Event, fifteen (15) days prior written notice to that effect.

10. Confidentiality

1. 10.1 Each Party hereby undertakes to the other Party that it shall procure that all persons controlled by it shall at all times hereafter (save with the prior written consent of the other Party) treat as strictly confidential and shall not disclose to any third party any information concerning the existence of the Licence Agreement and these General Terms and Conditions. The Parties shall not disclose information obtained in the course of performing their respective obligations under the Licence Agreement and these General Terms and Conditions, including information that constitutes any trade or commercial secret of either Party and any other information which disclosure may cause loss or damage the business reputation of either Party or any information relating to the other Party obtained as a result of entering into this Agreement, provided that a Party and any person controlled by it may disclose information which would otherwise be confidential if and to the extent:
1. 10.1.1 required by law;
2. 10.1.2required by any competent tax authority, regulatory or governmental body, or agency or person to which such Party is subject or submits (wherever situated);
3. 10.1.3the information has come into the public domain through no fault of that Party; or
4. 10.1.4disclosed to professional advisers of such Party who will in turn be bound by the provisions of this clause 10.
2. 10.2 Upon written request of the disclosing Party at any time during the Term or upon termination of the Licence Agreement, the receiving Party shall, at the option of the disclosing Party:
1. 10.2.1 promptly return all confidential information, documents, data and/or other information (or the part thereof required in such request) (including copies) to the disclosing Party in a format and/or on media reasonably requested by the disclosing Party; or
2. 10.2.2 destroy or delete that confidential information, documents, data and other information (including copies) in the manner specified by the disclosing Party (other than such copies required to be kept by the receiving Party by law) and promptly certify to the disclosing Party in writing that it has done so,
   
   provided, however, that the receiving Party may retain, in the sole custody of its legal counsel, certain categories of confidential information, documents, data and other information identified to the requesting Party and which are reasonably necessary to substantiate compliance with the Licence Agreement or these General Terms and Conditions or otherwise required for financial, operational and/or auditing purposes. Any such items will remain subject to the confidentiality obligations in this clause 10. When such retained information is no longer reasonably required, it shall be, according to the instruction received in that behalf, either returned to the disclosing Party or destroyed, with written certification thereof being given to the disclosing Party.
3. 10.3 The termination or expiry of the Term for whatever reason shall not affect the provisions of this clause 10 which shall survive the termination or expiry of the Term.

11. Termination

1. 11.1 At any time during the Term, either Party may terminate the Licence Agreement without cause or for convenience by sending the other Party at least three (3) months prior written notice.
2. 11.2 Either Party may terminate the Licence Agreement in the event the other Party materially breaches any of its obligations hereunder and if such breach is capable of being cured, fails to cure such breach within fifteen (15) days after receipt of a written notice from the non-breaching Party specifying such breach in reasonable detail. In the case of breach incapable of being cured, the non-breaching Party may terminate the Licence Agreement immediately upon giving the breaching Party written notice.
3. 11.3 The Licence Agreement may also be terminated in the event of a Force Majeure Event as stipulated in clause 9.3.
4. 11.4 Notwithstanding any provision of the Licence Agreement, Kwara shall be entitled to suspend Kwara Software in its sole discretion in any of the following cases:
1. 11.4.1 the Customer fails to pay the Subscription Fee as and when due;
2. 11.4.2the Customer fails to pay any other fee payable by the Customer to Kwara;
3. 11.4.3the Customer breaches any term and/or condition of the Licence Agreement or these General Terms and Conditions; or
4. 11.4.4the Customer misuses or allows unauthorised access to the Kwara Software.
5. 11.5 Kwara shall inform the Customer about such suspension of the Kwara Software and Kwara’s reasons for such suspension and give the Customer a definite period for the Customer to remedy the breach. Kwara shall be entitled to terminate the Licence Agreement if the Customer does not cure the breach within such period, without prejudice to any rights that may have accrued to Kwara.
6. 11.6 In the event of termination, the Parties shall perform all mutual settlements and payments in full immediately on the date of termination.
7. 11.7Termination shall not relieve either Party of obligations incurred prior thereto including all payment obligations under the LicenceAgreement.
8. 11.8Upon termination of the Licence Agreement, the Customer shall purge from Kwara’s Software all the Customer’s and Account Holders data within fifteen (15) days. After the fifteenth (15th) day after the termination date, Kwara will be released from all obligations to protect the Customer's and Account Holder’s data.
9. 11.9Effect of termination: In the event that the Licence Agreement and these General Terms and Conditions are terminated, the following shall be the consequences:
1. 11.9.1unless otherwise agreed in writing by the Parties, all or any sums payable under the Licence Agreement and these General Terms and Conditions and which are unpaid at the date of termination, shall forthwith become due and payable to Kwara by the Customer;
2. 11.9.2the provisions of the Licence Agreement and these General Terms and Conditions shall, to the extent stated or necessarily implied, survive the termination thereof;
3. 11.9.3unless otherwise provided in the Licence Agreement and these General Terms and Conditions, termination is without prejudice to any other right or remedy of the Parties. Termination of the Licence Agreement and these General Terms and Conditions does not release either Party from any liability which, at the time of termination, has already accrued to the other Party or which may accrue in respect of any act or omission prior to termination or from any obligation that is expressly stated to survive the termination; and
4. 11.9.4each Party shall return (where practicable) all the Materials (if any) belonging to the other Party including any data, information, files of completed or unfinished work as soon as is practically possible and shall have no lien over the Material of the other Party.

12. Representation and Warranties:

1. 12.1 Each Party represents and warrants to the other Party that:
1. 12.1.1 it has all requisite power and authority to execute, deliver and perform its obligations under the Licence Agreement and, further, that it has been fully authorised by all requisite corporate actions to do so;
2. 12.1.2it has all necessary statutory and regulatory permissions, authorisations, consents, approvals, licences and permits for running, operating and conducting its business in relation to the Kwara Software;
3. 12.1.3it has full right, title and interest in and to all trade names, trademarks (both registered and unregistered), service marks, logos, trade secrets, innovation, invention, symbols and other proprietary marks (collectively Intellectual Property), which it provides to the other Party, for use with respect to the Kwara Software (including limited right of use of the Intellectual Property owned by any of its agents, affiliates or subcontractors) and that, any Intellectual Property provided by a Party will not infringe the right of any third party;
4. 12.1.4it will provide such cooperation as the other Party reasonably requests in order to give full effect to the provisions of the Licence Agreement and these General Terms and Conditions; and
5. 12.1.5the execution and performance of the Licence Agreement and these General Terms and Conditions by either of the Parties does not and shall not violate any provision of any existing arrangement, agreement, contract, law, rule, regulation, order or judicial pronouncement.
2. 12.2Any misrepresentation made by either Party in this clause 12 shall be deemed to be a material breach of the terms of the Licence Agreement and these General Terms and Conditions by that Party.
3. 12.3Except as provided herein, there are no other express or implied warranties, representations, undertakings or conditions.

13. Intellectual Property

1. 13.1The Parties acknowledge and agree that:
1. 13.1.1nothing herein shall confer or be deemed to confer on either Party, any right, title or interest in the other Party's Intellectual Property and each Party hereby acknowledges that it shall not acquire any right, title or interest in respect thereof;
2. 13.1.2all Intellectual Property which may hereinafter be disclosed by a Party to the other Party shall, notwithstanding such disclosure, remain the exclusive property of the disclosing Party and the other Party shall not use or authorise the use of any such Intellectual Property otherwise than as expressly permitted herein or in the Licence Agreement and for the purposes stated therein;
3. 13.1.3both Parties agree to maintain and protect the Intellectual Property belonging to the other Party, at all times, and not to do or cause to be done or permit any activity that may prejudice or damage the other Party's ownership or right to the Intellectual Property and/or the goodwill associated thereto. Either Party's breach of this clause 13.1.3 shall constitute a material breach of the Licence Agreement and these General Terms and Conditions, entitling the other Party to terminate this Agreement in accordance with clause 11 hereof;
4. 13.1.4each Party shall co-operate fully with the other Party to protect the other Party's Intellectual Property and, in particular shall, on becoming aware of the same, promptly notify the other Party of any actual or potential infringements, claims or actions brought by third parties in relation to such Intellectual Property. Each Party shall be solely responsible for the registration, protection and/or enforcement of its Intellectual Property rights and shall bear all cost relating thereto;
5. 13.1.5either Party shall not make any admission, attempt to settle or otherwise contact any third party in respect of any claim involving the other Party’s Intellectual Property without the written consent of the other Party;
6. 13.1.6if a third party claims that the Material provided by the Customer to Kwara under this Agreement, misappropriate or infringe such third party's Intellectual Property or proprietary rights, the Customer shall defend and hold Kwara harmless from and against any such claim and/or action and shall pay all costs, damages, liabilities and all related expenses, that a court may finally award or as may be agreed in an out of court settlement;
7. 13.1.7the Customer acknowledges that Kwara's obligations under the Licence Agreement and these General Terms and Conditions may be impacted when Kwara’s Materials are subject to an injunction or court order precluding their use. In such event, Kwara will use commercially reasonable efforts to continue availing the Kwara Software to the Customer using non-infringing Materials but Kwara will not be penalised or held responsible, in any manner whatsoever, for any damages, downtime, unavilability and/or service level credits, and such caused by the affected Material during such periods of suspension, provided always that Kwara shall avail a certified copy of such injunction or court order to the Customer as soon as is practically possible.
2. 13.2Kwara retains all right, title and interest in and to Kwara’s Intellectual Property. Any Intellectual Property developed by Kwara or the Customer during the use of the Kwara Software shall exclusively, wholly and solely belong to Kwara and the Customer shall have no claim whatsoever thereto. Further, the Customer hereby acknowledges that the Customer does not acquire any ownership interest in or right to possess the Kwara Software, and that the Customer has no right of physical access to the Kwara Software.
3. 13.3Kwara shall not acquire any ownership interest in or right to the information that the Customer transmits to or from the Kwara Software, other than is expressly provided herein.
4. 13.4If Kwara or any of its clients is faced with a credible claim that the Kwara Software infringes the Intellectual Property rights of a third party, and Kwara is not reasonably able to obtain the right to use the infringing element or modify the Kwara Software such that it does not infringe, then Kwara may terminate or suspend the the Licence Agreement on reasonable written notice to the Customer and Kwara will not have any liability on account of such termination and/or suspension except to refund any unutilised Subscription Fee prepaid by the Customer as of the time of termination.
5. 13.5A breach of any of the provisions of this clause 13 by either Party shall be deemed to be a material breach of the terms of the Licence Agreement and these General Terms and Conditions by that Party.

14. Indemnity

1. 14.1 General Indemnity: Each Party shall defend, indemnify and hold harmless the other Party and its respective officers, directors, employees, affiliates and agents from and against all claims, actions, judgments, costs, demands, penalties, suits, liabilities, losses, damages and all related expenses based on:
1. 14.1.1 bodily injury (including death) caused by that Party's negligent acts or omissions;
2. 14.1.2damage to tangible, personal or real property, to the extent that such injury or damage arises from the negligence of or breach of the Licence Agreement and these General Terms and Conditions by the indemnifying Party;
3. 14.1.3damage to or loss of the indemnified Party's Materials and/or, confidential information, Intellectual Property rights caused by the indemnifying Party’s acts and/or omissions;
4. 14.1.4claims by government regulators and/or agencies for fines, penalties, sanctions or other remedies arising from or in connection with that Party's failure to comply with its regulatory obligations or breach of the Licence Agreement and these General Terms and Conditions;
5. 14.1.5any third party claim on account of a breach of confidentiality, Intellectual Property and security of data, including any breach occurring as a result of acts of omissions of that Party's employees, agents and/or sub contractors;
6. 14.1.6any claim occurring on account of proven gross negligence or willful misconduct of that Party’s employees, agents and/or subcontractors in relation to the Licence Agreement and/or these General Terms and Conditions; and/or
7. 14.1.7any claim occurring on account of default in payment of that Party's tax obligations.
2. 14.2The Customer shall indemnify, defend and hold Kwara harmless from any and/or all claims, actions, demands, penalties, suits, liabilities, losses, damages and/or costs on account of any misuse and/or unauthorised use of the Kwara Software, the Marketing Information or Kwara’s Material by the Customer or the Customer's employees, agents, subcontractors, end users, Account Holders and/or any third person acting on behalf of the Customer or under the control and/or direction of the Customer.
3. 14.3Notwithstanding anything contained in this Agreement, Kwara shall have no obligation towards the Customer, Account Holders and/or the Customer’s clients, affiliates and/or any third party claiming through the Customer as regards the Kwara Software, to the extent it is proved that the use of the Kwara Software is affected by the quality, appropriateness and/or compatibility of the Customer’s Materials. Further, Kwara shall not, in any manner, be held responsible for any breach of contract by the Customer with any of the Account Holders and/or any of the Customer’s clients, strategic partners, suppliers and/or affiliates.

15. Publicity

1. 15.1 Notwithstanding the provisions of clauses 10 and 13 herein:
1. 15.1.1 the Customer agree that Kwara may disclose that the Customer is using the Kwara Software for the Customer’s business operations and in this regard, Kwara may use the Customer’s name, trade mark, trade name, service mark and/or logo (collectively referred to as the Trademarks) to identify the Customer as Kwara’s client on the Marketing Information, on Kwara website or elsewhere;
2. 15.1.2Kwara shall be entitled to issue a press release about the conclusion of the Licence Agreement and the business relationship between Kwara and the Customer; and
3. 15.1.3for the purposes of clauses 15.1.1and 15.1.2 above, the Customer grants Kwara for the Term, the non-exclusive, worldwide right to use the Trademarks.

16. Miscellaneous

1. 16.1 The Parties agree that the Licence Agreement is being entered into on a principal to principal basis and that each Party is an independent entity and not an agent and/or employee of the other Party. The relationship between the Parties is a business relationship and does not create a relationship of agency, partnership, joint venture, employment and/or franchise between the Parties. A Party has no authority to bind, to contract in the name of or to create a liability for the other Party in any way or for any purpose. The relationship between the Parties is that of independent contractors and not business partners. Neither Party is the agent for the other, nor do they have the right to bind the other to any agreement with a third party.
2. 16.2 Notices:
1. 16.2.1 Except as specifically provided elsewhere in this Agreement, all notices required or permitted to be given under the Licence Agreement shall be in writing and shall be sufficient, if made:
1. 16.2.1.1 by personal delivery, (including delivery by any commercial delivery service with acknowledgment received); or
2. 16.2.1.2by registered or certified mail, postage prepaid, fax, electronically (by email) and return receipt requested at the respective addresses set forth below.
3. 16.2.1.3Such notice shall be deemed received, in the case of personal delivery, on the date upon which such notice is so actually delivered, or if the notice is given by registered or certified mail, two (2) days after the date upon which it is deposited in the mail, shall be deemed to be the date of receipt of such notice, irrespective of the date appearing therein. In the case that the notice is given by fax or electronically (by email) the same shall be deemed to be delivered on the date of transmission PROVIDED ALWAYS THAT if the notice is sent by fax or electronically (by email) the same shall be immediately followed by a hard copy of the notice sent to the recipient.
3. 16.3 Amendments and Modifications: Any amendment or modification of the Licence Agreement must be in writing and signed by authorised representatives of both Parties. Kwara may amended these General Terms and Conditions at any time upon giving the Customer prior written notice in this regard.
4. 16.4 Governing Law: The Licence Agreement and these General Terms and Conditions will be governed by and interpreted in accordance with the laws of the Republic of Kenya.
5. 16.5 Dispute Resolution: The Parties shall make every effort to resolve disputes arising out of or in connection with the Licence Agreement and these General Terms and Conditons through amicable negotiations and/or mediation. Any dispute that is not resolved by amicable negotiations or mediation within thirty (30) day, may be referred to resolution on a court of law in Kenya. Notwithstanding the foregoing, a Party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction at any time.
6. 16.6 The Licence Agreement and these General Terms and Conditions represents the entire understanding and agreement between the Customer and Kwara regarding the Kwara Software and supersedes all other previous agreements.
7. 16.7 Unenforceable Provisions: If any part of the Licence Agreement and/or these Genral Terms and Conditions is found to be unenforceable, the rest of the Licence Agreement and/or these General Terms and Conditions will nonetheless continue in effect, and the unenforceable part shall be amended and/or varied to the extent possible to make it enforceable but still consistent with the business and financial objectives of the Parties .