SaaS Terms of Use

Effective starting May 15, 2016

Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.

1. Acceptance

• These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between EBingwa (referred to as "SaaS Provider", "we" or "us") and the user (referred to as "Customer" or "you"), collectively referred to as the Parties or each a Party, (Agreement).
• The SaaS Provider owns, or holds the relevant rights to, the EBingwa Software and will license the use of the Software as a service to the Customer.
• The Customer wishes to license the SaaS Services available at https://ebingwa.co.ke (Site) from the SaaS Provider.
• This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account (Customer's account) to access and use the Services (Effective Date).
• By accessing and/or using the Services you:
  • warrant to us that you have reviewed this Agreement, including our Website Terms of Use (available on the Site) and our Privacy Policy (available on the Site), with your parent or legal guardian (if you are under 18 years of age), and you understand it;
  • warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent's or legal guardian's permission to access and use the Site and they have agreed to the Terms on your behalf; and
  • agree to use the Services in accordance with this Agreement.
• You must not create a Customer account unless you are at least 18 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) create a Customer account and/or use the Site, you agree to: (i) supervise the Minor's use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor's use of the Site and their Customer account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor's behalf.
• By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.

2. Services

• On or from the Effective Date and during the Term, the SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement.
• The Customer agrees the SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the SaaS Provider to the Customer including any Customer configuration documentation.
• The SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, the SaaS Provider will provide the Customer with 20 Business Days' notice and the Customer agrees that any material alteration is at the SaaS Provider's discretion.
• The Parties agree that the SaaS Provider:
  • will supply the Services on a non-exclusive basis;
  • does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
  • is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
• The SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.

3. SaaS Service Licence

• In consideration for payment of the Fees, the SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider's intended purpose for the SaaS Services (SaaS Licence).
• The Customer agrees that the SaaS Licence:
  • commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the SaaS Provider, whichever occurs first;
  • permits the Customer to use the SaaS Services in accordance with the SaaS Services' normal operating procedures; and
  • permits the Customer to provide access and use of the SaaS Services to Authorised Users by embedding the SaaS Services into Customer's services to its customers, as applicable.

4. Licence Restrictions

• The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the SaaS Provider's Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
  • resell, assign, transfer, distribute or provide others with access to the SaaS Services;
  • "frame", "mirror" or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
  • copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software (except as expressly permitted by applicable copyright law); or
  • alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
• The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Kenya or the jurisdiction in which the Customer or its Personnel are located.

5. Data

• The Customer grants to the SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
  • to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
  • to do analysis for the purposes of predictive analytics, industry guideline production and other education-related uses, provided such Data is re-identified;
  • for diagnostic purposes;
  • to test, enhance and otherwise modify the Services whether requested by the Customer or not;
  • to develop other Services; and
  • as reasonably required for the performance of the SaaS Provider's obligations under this Agreement.
• The Customer represents and warrants that:
  • any and all Data supplied by the Customer or otherwise accessed by the SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;
  • its Data does not breach any relevant laws, regulations or codes;
  • its Data does not infringe the Intellectual Property Rights of any third party;
  • it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the SaaS Services; and
  • to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
• The Customer acknowledges and agrees that:
  • any collation, conversion and analysis of Data performed as part of the Services, whether by the SaaS Provider or any third party, is done on an automated basis and the SaaS Provider does not verify the accuracy of the Data;
  • the SaaS Provider is not responsible for any corruption or loss of any Data, any interruption or disruption to the Customer's access to the Data, or any loss or damage which may occur to the Customer's Data, except to the extent caused by the SaaS Provider's breach of this Agreement or negligence;
  • the Customer is responsible for maintaining backups of all Data uploaded to the Services;
  • the SaaS Provider may relocate the Data to another jurisdiction. In each case the SaaS Provider will use reasonable endeavours to notify the Customer of the location of the Data storage facilities;
  • the SaaS Provider does not warrant that any storage of the Data will be permanent or continuous;
  • the Customer is responsible for ensuring that it does not lose, destroy or corrupt any Data; and
  • the SaaS Provider may delete all Data after termination of this Agreement in accordance with clause 17.

6. Fees and Payment

• The Customer must pay the Fees to the SaaS Provider in accordance with the Payment Terms.
• All Fees are exclusive of taxes, duties and charges imposed or levied in Kenya or overseas in connection with the supply of the Services. The Customer is responsible for payment of all such taxes, duties and charges.
• If the Customer fails to pay any Fees when due, the SaaS Provider may suspend the Customer's access to the Services until payment is made in full.
• All Fees are non-refundable unless otherwise specified in this Agreement or required by law.

7. Intellectual Property Rights

• All Intellectual Property Rights in the Services, Software and any documentation provided by the SaaS Provider remain the property of the SaaS Provider or its licensors.
• The Customer acknowledges that it does not acquire any Intellectual Property Rights in the Services, Software or documentation except for the SaaS Licence granted under this Agreement.
• The Customer grants the SaaS Provider a non-exclusive, royalty-free licence to use the Customer's name, logo and trademarks for marketing and promotional purposes.

8. Confidentiality

• Each Party agrees to keep confidential all Confidential Information of the other Party and not to use or disclose that Confidential Information except as permitted by this Agreement.
• The obligations of confidentiality do not apply to information that:
  • is publicly available or becomes publicly available other than through a breach of this Agreement;
  • is required to be disclosed by law or by a regulatory authority; or
  • is independently developed by the receiving Party without reference to the Confidential Information.

9. Warranties and Disclaimers

• The SaaS Provider warrants that it has the right to grant the SaaS Licence to the Customer.
• Except as expressly set out in this Agreement, the Services are provided "as is" and the SaaS Provider makes no warranties, representations or guarantees of any kind, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement.
• The SaaS Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.

10. Limitation of Liability

• To the maximum extent permitted by law, the SaaS Provider's liability for any claim arising out of or in connection with this Agreement is limited to the amount of Fees paid by the Customer in the 12 months preceding the claim.
• The SaaS Provider is not liable for any indirect, consequential, special, or punitive damages, including but not limited to loss of profits, loss of data, or business interruption.
• Nothing in this Agreement excludes or limits the SaaS Provider's liability for death or personal injury caused by negligence, fraud, or any other liability that cannot be excluded by law.

11. Termination

• Either Party may terminate this Agreement at any time by giving 30 days' written notice to the other Party.
• The SaaS Provider may terminate this Agreement immediately if:
  • the Customer breaches any material term of this Agreement and fails to remedy that breach within 14 days of receiving notice;
  • the Customer becomes insolvent or enters into administration, liquidation, or bankruptcy; or
  • the Customer uses the Services in a manner that is illegal or harmful to the SaaS Provider or third parties.
• Upon termination, the Customer's right to access and use the Services will immediately cease, and the SaaS Provider may delete all Customer Data after a reasonable retention period.

12. General Provisions

• This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings.
• This Agreement may only be amended in writing and signed by both Parties.
• If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect.
• This Agreement is governed by the laws of Kenya, and the Parties submit to the exclusive jurisdiction of the courts of Kenya.
• Neither Party may assign or transfer this Agreement without the prior written consent of the other Party, except that the SaaS Provider may assign this Agreement to an affiliate or in connection with a merger or acquisition.

Definitions

In this Agreement, unless the context otherwise requires:

• Agreement means this SaaS Terms of Use agreement.
• Authorised Users means the Customer's employees, contractors, and other personnel who are authorised by the Customer to access and use the Services.
• Business Day means a day that is not a Saturday, Sunday, or public holiday in Kenya.
• Confidential Information means all information disclosed by one Party to the other Party that is marked as confidential or would reasonably be considered confidential.
• Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.
• Data means all of the information, documents and other data provided by the Customer or their Personnel to the SaaS Provider, any content uploaded by the Customer or Personnel to the SaaS Provider's System, or otherwise accessed by the SaaS Provider in providing the Services.
• Effective Date means the date on which the Customer is granted access to the Services.
• Fee means the fee set out on the Site for the Customer account.
• Intellectual Property Rights means all present and future rights to copyright, registered or unregistered designs, patents, trade marks, trade names, know-how, inventions, processes, trade secrets, circuit layouts, databases or source codes, and any similar rights in any part of the world.
• Payment Terms means 30 days from the date of the invoice.
• Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.
• SaaS Licence is defined in clause 3.1.
• SaaS Services means the EBingwa Software as a service described on the Site.
• Services means the SaaS Services and Support Services, to be provided or licensed by the SaaS Provider to the Customer on the terms and conditions set out in this Agreement.
• Software means the software used to provide the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.
• Support Services are set out on the Site.
• System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.
• Term means the term of this Agreement as set out in clause 11.

If you have any questions about these SaaS Terms of Use, please contact us at support@ebingwa.co.ke.