1. Definitions
The terms contained in the Agreement and these Terms and Conditions initially
capitalized are defined and have the meaning as set out in this Clause:
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, all
of which that apply to providing or receiving the Service and/or End User Service in
the country where the Service and/or the End User Service is delivered; and also
(ii) all regulations, guidelines, conditions, policy rules and/or other requirements
of Operators in the country where the Service and/or the End User 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.
Effective date: means the date on which a particular Agreement
comes into effect, as
reflected in an Order Form.
End User: a natural person or entity who is authorized by Client to
make use of the
Client’s End User Services.
End User Service: service provided by Client to its End Users, via
the SBS Platform.
Operator: a (mobile) electronic communications service provider
that provides
(wireless) voice and data communication and other related services to other
Operators and/or for its subscribed end users.
Order: means an order placed by Client and accepted by SBS for
Services, which may
be effected by way of a writing signed physically or electronically by the Parties
or by way of SBS’s website.
Order Form: means a document in physical or electronic form
reflecting an Order, whether designated as an “Order”, “Statement of Work”, or
otherwise, and will
include, in all events, an Order effected through SBS’s website.
SBS Platform: the computing environment of SBS designed to create
the connection
between an Operator network and the system of the Client.
Personal Data: any information relating to an identified or
identifiable natural
person (‘Data Subject’) that is Processed by SBS in its role as Processor as part of
providing the Service to Client under the Agreement.
Processing/to Process: any operation or set of operations which is
performed on
Personal Data, whether or not by automatic means, including collecting, accessing,
storing, using, combining, transferring, disclosing or deleting of Personal Data.
Service: a service SBS provides to the Client under the Agreement
as expressly
described in an Order Form.
Traffic: electronic communication and/or data traffic from and to a
mobile telephone
and/or fixed line, mobile device or online application. Such traffic includes
without limitation SMS, MMS, Push, USSD, OTT, RCS, voice and/or data.
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. SBS will not provide warranties or be
responsible in this regard.
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. The
Client shall be charged for all Traffic that is sent to, and received by the SBS
Platform via the connection of Client.
3.3 If a fixed price has been expressly agreed in the Agreement for one or more
Services, SBS is only entitled to change those fixed price(s) after written
agreement by the Client.
3.4 Notwithstanding clause 3.3, SBS is in every instance entitled to change its
prices following from changes to Applicable Law, from an increase in the purchase
price of messages and/or from rates changes effected by Mobile Network Operators.
SBS shall use reasonable efforts to inform the Client in advance of such price
increases
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. SBS may change the interest rate upon notice to Client. Client
will reimburse SBS for all reasonable costs and expenses incurred (including
reasonable attorneys’ fees) in collecting any late payments or interest. Timely
payment of all amounts due is a condition precedent to all of SBS’s obligations and
Client’s rights under this Agreement.
3.7 SBS is entitled to require payment of a deposit. as a condition to rendering
Services. From time to time during the term of the Agreement SBS may adjust the
amount of deposit after consultation with Client. Upon termination of the Agreement
the deposit will be refunded to the Client after set-off of the deposit against any
outstanding amounts then due by the Client to SBS. The deposit shall be transferred
back to the client within two (2) calendar months following termination of the
Agreement. SBS shall not be obligated to maintain deposits in segregated accounts or
and neither will the deposit accrue interest for the Client.
3.8 Client is responsible for payment of the applicable value added tax (VAT) and/or
any other tax or levy on its End User Service. The Client shall indemnify SBS for
and against all claims by tax authorities in this regard and shall indemnify SBS for
all losses, penalties and costs arising therefrom.
3.9 Where bank fees occur, Client shall bear the costs imposed by its own bank, any
intermediate bank and the bank of SBS as indicated on the invoice when making
payments under the Agreement. The net amount received by SBS shall correspond to the
amount invoiced. In this regard, the Client remains liable to pay the any shortfall
of outstanding amounts due.
3.10 Notwithstanding clause 3.3, SBS shall have the right to make adjustments to its
prices (fixed or general) on an annual basis at the beginning of each subsequent
calendar year to reflect the annual changes in the national Consumer Price Index
(CPI). SBS shall use reasonable efforts to inform the Client in advance of such
price increases.
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. Client is responsible for all activity occurring on its account, even if
not authorized by Client.
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:
(i) reverse engineer or otherwise attempt to gain unauthorized access to any
component of the SBS Platform;
(ii) resell the SBS Platform or otherwise use or allow any person to use the
SBS Platform or Service for any purpose other than for
the benefit of Client in accordance with this Agreement;
(iii) interfere with, or disrupt the integrity or performance of, the SBS
Platform, or any data or content
contained therein or transmitted thereby;
(iv) collect data from or regarding the SBS Platform, save for Service features
provided by SBS use expressly for such purposes; or
(v) use the Service, SBS Platform or any other SBS Confidential
Information for benchmarking or competitive analysis with respect to competitive or
related products or services, or to develop, commercialize, license or sell any
product, service or technology that could, directly or indirectly, compete with the
Service or SBS Platform.
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, including as to whether
such End User has provided a valid consent to receive Traffic, and guarantees that
it complies with Applicable Law and does not infringe third-party rights. The Client
will maintain up to date records of end user consent and provide these to SBS upon
request. The Client will not send any unsolicited traffic, nor other unethical,
illegal, punishable or otherwise fraudulent or illicit traffic or content.
4.6 Client hereby grants SBS a non-exclusive, royalty-free right and license, with
the right to sublicense, to use, host, reproduce, display, perform, modify the
Client Materials solely for the purpose of operating, improving and providing the
Service and SBS’s other related products, services and technologies during the term
of this Agreement.
4.7 Client shall cooperate with SBS and provide any information reasonably required
for boarding and acceptance procedures of Operator(s). Without limitation, Client
will provide SBS the full name of its company, its address, company registration
number and VAT number (if applicable) and the name of its director(s) / officer(s)
authorized to sign the Agreement. Changes to these details must be submitted to SBS
in writing.
4.8 Client acknowledges and agrees that SBS may be obliged by Mobile Network
Operators and/or competent authorities to provide the data of Client as described in
the previous paragraph and the data of other parties that are being connected via
Client. Client shall provide all such data requested by SBS within three (3) Working
Days.
4.9 Client shall cooperate with any audit which investigates whether the Client is
acting in accordance with Applicable Law.
Client Warranty and indemnification
5.1 Client represents and warrants that
(i) 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 as contemplated by this Agreement;
(ii) SBS’s use of the Client Materials in accordance with this Agreement will
not violate any Applicable Law or cause a breach of any agreement or obligations
between Client and any third party; and
(iii) the promotion of the End User Service will not
infringe the Intellectual Property Rights of third parties or violate any is in
breach of Applicable Law.
5.2 Nothwithstanding clause 12, and without any limitation, Client will indemnify,
defend and hold SBS harmless for all losses, damages, liabilities and costs
(including reasonable attorneys’ fees) (“Losses”) incurred by SBS resulting from any
claim, suit or proceeding brought by a third party against SBS arising from
(i) the End User Service or Client Materials, including, without limitation, (A) any
claim that the End User Service or Client Materials infringe, misappropriate or
otherwise violate any third party’s Intellectual Property Rights or privacy or other
rights; or (B) any claim that the use, provision, transmission, display or storage
of the Client Materials violates any Applicable Law; and
(ii) use of the SBS Platform and Service by Client in a manner that is not in
accordance with this Agreement. SBS will promptly notify Client of the claim for
which indemnity is being sought, and will reasonably cooperate with Client in the
defense and/or settlement thereof. Client will have the sole right to conduct the
defense of any claim for which Client is responsible hereunder (provided that Client
may not settle any claim without the SBS's prior written approval unless the
settlement is for a monetary amount, unconditionally releases SBS from all liability
without prejudice, does not require any admission by SBS, and does not place
restrictions upon SBS's business, products or services). SBS may participate in the
defense or settlement of any such claim at its own expense and with its own choice
of counsel or, if Client refuses to fulfill its obligation of defense, SBS may
defend itself and seek reimbursement from Client.
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, including cancellation of this
Agreement and/or a claim for specific performance and/or damages.
6.3 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
in accordance with the provisions of this clause.
6.4 As soon as the reason for suspension in accordance with the provisions of this
clause is removed by Client, SBS shall resume delivery of the Service unless SBS
believes that the nature and/or frequency of Client's non-compliance is such that
the provision of the Services should be cancelled permanently.
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.
7.2 If SBS and the Client or any of their affiliates have entered into more than one
Agreement, the SBS may set off amounts under any of those agreements, regardless of
the Agreement from which the payment obligations in question derive
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. 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).
8.2 The Client will only be entitled to suspend payment of the disputed part of the
invoice, if the amount disputed by the Client exceeds 5% of the total amount of the
invoice in question (excluding VAT). Client shall promptly pay any undisputed
portion of any invoice.
9. Confidentiality and publicity
9.1 As used herein, “Confidential Information” means any information that one Party
(the “Disclosing Party”) provides to the other Party (the “Receiving 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 given the
nature of the information and/or the circumstances of disclosure. [For clarity, the
SBS Platform and the Service will be deemed Confidential Information of SBS.
However, Confidential Information will not include any information or materials
that:
(i) were, at the date of disclosure, or have subsequently become, generally
known or available to the public through no act or failure to act by the Receiving
Party;
(ii) were rightfully known by the Receiving Party prior to receiving such
information or materials from the Disclosing Party;
(iii) are rightfully acquired by the Receiving Party from a third party who has the
right to disclose such information or materials without breach of any
confidentiality obligation to the Disclosing Party; or
(iv) are independently developed by or for the Receiving Party without use of or
access to any Confidential Information of the Disclosing Party. Without limiting the
foregoing, nothing in this Agreement will limit or restrict SBS’s ability to use or
disclose any general know-how, experience, concepts and/or ideas that SBS or its
personnel acquire or obtain in connection with the performance of SBS’s obligations
hereunder.
9.2 The Receiving Party will maintain the Disclosing Party’s Confidential
Information in strict confidence, and will not use the Confidential Information of
the Disclosing Party except as necessary to perform its obligations or enforce its
rights under this Agreement. The Receiving Party will not disclose or cause to be
disclosed any Confidential Information of the Disclosing Party, except
(i) to those employees, representatives, or contractors of the Receiving Party who
have a bona fide need to know such Confidential Information to perform under this
Agreement and who are bound by written agreements with use and nondisclosure
restrictions at least as protective as those set forth in this Agreement, or
(ii) as such disclosure may be required by the order or requirement of a court,
administrative agency or other governmental body, subject to the Receiving Party
providing to the Disclosing Party reasonable written notice to allow the Disclosing
Party to seek a protective order or otherwise contest the disclosure.
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; provided, however, with respect to any
Confidential Information that constitutes a trade secret (as determined under
applicable law), such obligations will survive the termination or expiration of this
Agreement for as long as such Confidential Information remains subject to trade
secret protection under Applicable Law.
9.4 The terms and conditions of this Agreement will constitute Confidential
Information of each Party, but may be disclosed on a confidential basis to a Party’s
advisors, attorneys, actual or bona fide potential acquirers, investors or other
sources of funding (and their respective advisors and attorneys) for due diligence
purposes.
9.5 Client hereby grants to SBS the right and permission to use Client's name and
company logo in marketing, sales, financial, and public relations materials and
other communications of SBS to identify Client as a Client of SBS. SBS hereby grants
to Client the express right to use SBS's logo solely to identify SBS as a provider
of Services to Client, subject to SBS’s prior written approval in each instance. All
goodwill and improved reputation generated by Client’s use of SBS’s name and logo
inures to the exclusive benefit of SBS; and all goodwill and improved reputation
generated by SBS’s use of Client’s name and logo inures to the exclusive benefit of
SBS. Other than as expressly stated herein, neither Party shall use the other
Party's name(s), marks, logo’s, URL’s or specifications without the prior written
permission of the other Party.
Personal data
10.1 SBS may process personal data either as a data controller or as a data
processor. Personal data may include Client Personal Data and End-user Personal
Data.
10.2 Where SBS is processing Client Personal Data they shall act as a data
controller under applicable Data Protection Laws. Data concerning the Client may
include contact data, financial data and Platform usage data. Any such data is
processed for contract management purposes, customer support, credit checks,
prevention of fraud and criminal activities and ‘know your customer’(‘KYC’)
processes. Data can additionally be used for statistical research and to contact
Client for marketing activities of SBS and its affiliates. SBS will process such
data only where this is necessary for the performance of the Agreement, in order to
comply with a legal obligation to which SBS is subject or where the processing is
necessary for the purposes of the legitimate interests pursued by SBS or a third
party. For the purpose of carrying out credit checks and monitoring to prevent fraud
and criminal activities, SBS may also share data with third parties.
10.3 Where SBS is processing End-user Personal Data as a public electronic
communication service provider, under the applicable telecom laws and Data
Protection Laws they shall act as an independent data controller with respect to the
processing of Personal Data (including but not limited to End-user data) which is
necessary for the operation of the electronic communication service. Such data
includes but is not limited to Traffic Data. Purposes for which End-user Personal
Data are processed are providing the Service, providing continuous information to
Client through SBS Analytics, billing purposes, financial administration, handling
complaints and disputes, traffic control, providing information to emergency
services, preventing fraud and criminal activities. SBS will process such data only
where this is necessary for the performance of the Agreement, in order to comply
with a legal obligation to which SBS is subject or where the processing is necessary
for the purposes of the legitimate interests pursued by SBS or a third party.
10.4 When processing data under clauses 10.2 and 10.3 above, SBS shall fully comply
with its obligations under applicable Data Protection Laws
10.5 Where SBS is processing End-user Personal Data other than as a public
electronic communication service provider and are not otherwise determining purpose
and means for the processing of such personal data, they are data processor under
applicable Data Protection Laws. Part II (data processing) of these Terms applies to
any such processing of End-user Personal Data.
10.6 Notwithstanding anything in this clause 10 and/or Part II of these Terms and
Conditions, SBS will have the right to collect, extract, compile, synthesize and
analyze non-personally identifiable data or information resulting from Client's use
or operation of the Services including, by way of example and without limitation,
information relating to volumes, frequencies, bounce rates, or any other information
regarding communications (“Service Data”) Client, its End Users or recipients
generate and send using the Services. To the extent any Service Data is collected or
generated by SBS such data will be solely owned by SBS and may be used by SBS for
any lawful business purpose without a duty of accounting to Client, provided that
such data is used only in an aggregated form, without directly or indirectly
identifying any person.
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 and SBS reserves all right, title, and interest in and to the SBS
Platform and Service, the underlying technology and code, and all enhancements,
adaptations, improvements, or modifications to the foregoing whether developed
during or independent of this Agreement and all Intellectual Property Rights
associated therewith.
12. Liability
12.1 The Client recognizes that access to the internet, telecommunication networks
and other communication media are subject to uncertainties, including but not
limited to, in relation to availability of services, reliability of transmission,
authorizations, authenticity and data security. SBS does not warrant that the
Services are, or will be completely error-free, bug-free or uninterrupted SBS shall
not be liable for any stoppages, slowdowns, interruption of the Service, performance
problems or other problems, that are due to circumstances beyond its control,
including, but not limited to, disturbance of radio, telephone and/or telecom
transmissions outside the SBS Platform, Client’s use of the SBS Platform in a manner
that is not in accordance with this Agreement, deficiencies or limitations in
Client’s hardware, systems, software, or processes, deficiencies or limitations in
internet or wireless connections. In the event of an error, bug or interruption, SBS
shall use its reasonable efforts to restore the Service in accordance with proper
practices recognized in the electronic communications industry.
12.2 The SBS Platform, Service and other SBS IP are provided on an “as is” basis.
SBS makes no warranties or representations to Client or any other party regarding
the SBS IP, including the SBS Platform, Service or any other services provided
hereunder. Without limiting the foregoing, SBS hereby disclaims any warranty that
use of the SBS Platform will be error-free, bug-free or uninterrupted.
12.3 To the maximum extent permitted by applicable law, neither Party will be liable
to the other under or in relation to this Agreement or the provision of the Service,
even if advised of the possibility of such damages and whether such liability arises
from any claim based on tort, including negligence, breach of contract, strict
liability, or otherwise, for any of the following:
(i) loss of profits, revenues or sales;
(ii) loss of bargain;
(iii) loss of opportunity;
(iv) the cost of substitute services or other economic loss,
(v) loss of use of any service or any computer equipment;
(vi) loss of time on the part of management or other staff;
(vii) professional fees or expenses;
(viii) business interruption
(ix) loss
(x) damage to or loss of data;
(xi) loss of goodwill or reputation, or
(xi) any indirect, special, incidental, exemplary, punitive or consequential damages
of any kind howsoever arising, and whether or not a party was advised of the
possibility of such loss or damage.
12.4 In no event will SBS’s total liability in connection with this Agreement, the
SBS IP or the Service 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) for the
total duration of the Agreement. In no event shall the total compensation by SBS for
any and all claims under this Agreement exceed one million Kenyan Shilling ( KES
1,000,000).
12.5 The limitations on liability specified in this Clause 13 shall not apply in the
event of willful intent or gross negligence by either party, or in case of personal
injury or death, or amounts owed by SBS or Client’s unauthorized use of the SBS
Platform or the Service.
13. Force majeure
13.1 A Party is not bound to meet any obligation under the Agreement (other than any
obligation to pay amounts due under this Agreement) if it is prevented from doing so
as a consequence of force majeure. The term 'force majeure' is used in this context
to include but is not limited to: government interventions, strikes, disease,
pandemic, epidemic, acts of terrorism or threat thereof, interruption of operations,
energy disruptions, interruptions in telecommunications facilities of third parties,
failure or late compliance by ancillary suppliers of SBS or other third parties
engaged by SBS, as well as every other circumstance that a Party could not
reasonably have avoided or prevented, which creates an obstacle to the normal
performance of the Agreement.
13.2 If a Party is prevented from complying with its obligations due to force
majeure, it shall make this known to other Party within ten (10) Working Days
following the day on which the situation of force majeure arose.
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 (each, a “Renewal Term,” and together with the
Initial Term, the “Term”), unless either Party terminates the Agreement in writing
by giving three (3) months' notice to the other Party before the end of then-current
Initial Term or Renewal Term.
14.3 SBS may immediately terminate the Agreement or the provision of a Service at
any time, effective on written notice to Client and without any liability towards
Client if it considers that further execution of the Service cannot reasonably be
expected on economic grounds.
14.4 Either Party may terminate the Agreement effective on written notice to the
other Party, if the other Party materially breaches this Agreement, and such breach
remains uncured ten (10) Working Days after the non-breaching Party provides the
breaching Party with written notice of such breach.
14.5 Either Party may further terminate the Agreement effective on written notice to
the other Party:
a. if the other Party becomes the subject of a voluntary or involuntary petition in
bankruptcy or proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors;
b. if the situation of force majeure as referred to in clause 13 lasts longer than
twenty (20) Working Days;
c. if such termination is required by the authorities or because of changes to the
terms and conditions of Operator(s).
14.6 If at the time of such termination as is referred to in clause 14.4 and 14.5
the Client has already received any performance in the execution of the Agreement,
any amounts invoiced by SBS before the termination in connection with that received
performance shall remain fully due and shall become immediately payable upon
termination.
14.7 Provisions which by their nature are intended to survive termination of the
Agreement shall continue to apply after the end of the Agreement. These provisions
among other things form part of clauses 5 (Client Warranty and Indemnification), 7
(Setting-off), 9 (Confidentiality & Publicity), 10 (Personal Data), 11 (Intellectual
Property), 12 (Liability), 13 (Force Majeure), 14.6 and 14.7 (Duration and
Termination of the Agreement), 16 (Applicable law and Disputes) of these Terms and
Conditions.
15. Transfer of rights and obligations; subcontracting
15.1 This Agreement may not be assigned by either Party without the written consent
of the other Party, in whole or in part, such consent not to be unreasonably
withheld; provided, however, that either Party may assign this Agreement without
prior notice or permission to any affiliate of such entity or to a third party that
succeeds to all or substantially all of such entity’s business and assets relating
to the subject matter of this Agreement, whether by merger, acquisition, sale of a
majority of its equity, sale of substantially all of its assets , or a similar
transaction. Any prohibited assignment shall be null and void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit of
the successors and permitted assigns.
15.2 SBS is entitled to engage affiliates and other third parties for delegating the
performance of the Agreement.
16. Applicable law and disputes
16.1 This Agreement (and any matters arising from or related hereto) will be
governed by and construed in accordance with the laws of Kenya without giving effect
to any principles of conflict of laws that would lead to the application of the laws
of another jurisdiction. The Parties expressly agree that the United Nations
Convention on Contracts for the International Sale of Goods will not apply.
16.2 Any dispute arising out of or in connection with this Agreement, including any
question regarding its existence, validity or termination, shall be referred to and
finally resolved shall be finally settled by the competent court in Nairobi, Kenya.
17. Miscellaneous provisions
17.1 Without prejudice to clause 17.4, amendments and additions to the Agreement or
other notifications are only valid and binding upon the parties if they are agreed
in writing and have been signed by the persons authorized for this purpose on behalf
of both Parties. Any amendment or addition will only apply to the relevant
Agreement.
17.2 This Agreement constitutes the entire agreement, and supersedes any and all
prior or contemporaneous representations, understandings and agreements, between the
Parties with respect to the subject matter of this Agreement, all of which are
hereby merged into this Agreement. Without limitation, the terms of any other
document, course of dealing, or course of trade will not modify this Agreement,
except as expressly provided in this Agreement or as the Parties may agree in
writing. No amendment to this Agreement or waiver of any provision hereof will be
valid or binding unless reduced to writing and duly executed by the party or parties
to be bound thereby. Failure to promptly enforce a provision of this Agreement will
not be construed as a waiver of such provision. Nothing contained in this Agreement
will be deemed to create, or be construed as creating, a joint venture or
partnership between the Parties. Neither Party is, by virtue of this Agreement or
otherwise, authorized as an agent or legal representative of the other Party.
Neither Party is granted any right or authority to assume or to create any
obligation or responsibility, express or implied, on behalf or in the name of the
other Party, or to bind such other Party in any manner. Nothing contained in this
Agreement will be deemed to create any third party beneficiary right upon any third
party whatsoever, except that SBS’s parent company and affiliates will be
third-party beneficiaries of the provisions in this Agreement and such provisions
will apply to such parent and affiliates, including (but not limited to) those
relating to intellectual property, indemnity, disclaimers, arbitration, and damages
limitation and waivers. Each of the Parties acknowledges that it has had the
opportunity to have this Agreement reviewed or not by independent legal counsel of
its choice. If any one or more of the provisions of this Agreement should be ruled
wholly or partly invalid or unenforceable, then the provisions held invalid or
unenforceable will be deemed amended, and the court or other government body is
authorized to reform the provision(s) to the minimum extent necessary to render them
valid and enforceable in conformity with the Parties’ intent as manifested herein.
17.3 Contact persons for each Party may only represent and bind Parties insofar as
this concerns “day-to-day” operational performance of the Agreement.
17.4 All notices required or permitted under this Agreement will be in writing, with
reference to this Agreement. All notices to SBS will sent to SBS Netherlands B.V.,
Konijnenberg 30, 4825 BD Breda, the Netherlands, and all notices to Client will be
sent to the address set forth in the relevant Order Form; or to such other address
as may be specified by the relevant Party to the other Party in accordance with this
clause
17.4. Such notices shall deemed given:
(i) when delivered personally;
(ii) one (1) Working Day after deposit with a nationally recognized express courier,
with written confirmation of receipt; or
(iii) three (3) Working Days after having been sent by registered or certified mail,
return receipt requested, postage prepaid.
17.5 SBS is authorized to modify these Terms and Conditions at any time. SBS will
inform Client of any modifications. If Client doesn’t object in writing within a
month from the date of sending of the modification notification, the modifications
to the Terms and Conditions are deemed accepted by Client. If Client objects, the
previous Terms and Conditions remain applicable. However, SBS then alternatively has
the right to cancel the Agreement with Client by giving one (1) month written
notice.
Part II. Data Processing
18. Definitions and interpretation
18.1 In Part II of these Terms and Conditions, except where set forth otherwise and
in addition to the terms set out in Part I, the following terms shall have the
following meanings:
Technical and Organizational Measures: measures to protect Personal
Data against accidental or unlawful destruction or accidental loss, alternation,
unauthorized disclosure or access and against all other unlawful forms of
Processing.
Personal Data Breach: a breach of security leading to the accident
or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to,
Personal Data transmitted, stored or otherwise Processed.
Expressions such as, ‘Data Subject’, ‘Data Processor’, ‘Data Controller’, ‘Data
Protection Impact Assessment’, etc. shall have the meaning ascribed to them in the
Data Protection Laws.
18.2 References to Data Protection Laws shall be replaced with or incorporate
references to any laws replacing or amending those Data Protection Laws, and the
equivalent terms defined in such laws, once in force and applicable.
18.3 In case of any conflict, the provisions of this Part II concerning Processing
of Personal Data shall take precedence over the provisions of the Agreement and/or
Part I. Where individual provisions of this Part II are invalid or unenforceable,
the validity and enforceability of the other provisions shall not be affected.
19. Obligations of the Client
19.1 Compliance
19.1.1 Client shall, in its use of the Service, Process Personal Data in accordance
with the requirements of Data Protection Laws. For the avoidance of doubt, Client’s
instructions for the Processing of Personal Data shall comply with Data Protection
Laws. Client shall have sole responsibility for the accuracy, quality, and legality
of Personal Data and the means by which Client acquired Personal Data.
19.1.2 Client shall maintain accurate and complete records of the use of the Service
under the Agreement during the term of the Agreement and as required under the Data
Protection Laws. Upon reasonable written notice, Client shall provide information as
requested and where required by SBS, any Operator, regulator or other competent
authority. Without limiting the generality of any other provision of the Agreement,
prior to using the Service, Client shall obtain verifiable informed consent of the
End Users or be able to provide confirmation of any other applicable lawful basis
for Processing, and shall maintain a record of each such consent and/or lawful
basis.
20. Obligations of the Processor
20.1 Instructions
20.1.1 SBS shall Process Personal Data in accordance with this Part II and the
Agreement, and for the purposes and in the manner specified by Client from time to
time in the Agreement and further instructions within the scope of the Agreement.
20.1.2 In case SBS is required to Process Personal Data under mandatory law as
specified in this Part II or the Agreement, SBS shall for those purposes be
considered an independent controller. If SBS is required to Process Personal Data
under mandatory law SBS shall inform Client hereof in writing before Processing
unless the law prohibits providing such information.
20.2 Technical and Organizational Measures
20.2.1 Taking into account the state of the art, the nature, scope, context and
purposes of Processing as well as the risk of varying likelihood and severity for
the rights and freedoms of natural persons, SBS shall implement appropriate
Technical and Organizational Measures (including protection against unauthorized or
unlawful Processing and against accidental or unlawful destruction, loss or
alteration or damage, unauthorized disclosure of, or access to, Personal Data) to
ensure a level of security appropriate to the risk.
20.2.2 SBS shall test, assess and evaluate the effectiveness of Technical and
Organizational Measures for ensuring the security of the Processing on an ongoing
basis. SBS shall continuously enhance and improve Technical and Organizational
Measures.
20.3 Personnel requirements
SBS ensures that persons authorized to Process the Personal Data have committed
themselves to confidentiality or are under an appropriate statutory obligation of
confidentiality. Access to Personal Data is restricted to personnel who require
access in order to perform the Services under the Agreement.
20.4 Confidentiality
SBS agrees that it shall maintain the Personal Data in confidence. In particular,
SBS agrees that it shall not disclose any Personal Data supplied to SBS by, for, or
on behalf of Client to any third party without Client's prior written consent,
except as foreseen and required for the performance of the Service under the
Agreement or mandatory law.
20.5 Data Subject Rights
20.5.1 Where Client so instructs SBS, SBS shall transfer, correct, delete or block
Personal Data if Client receives a request from a Data Subject to exercise the Data
Subject's right of access, right to rectification, restriction of Processing,
erasure (“right to be forgotten”), data portability, object to the Processing, or
its right not to be subject to an automated individual decision making (“Data
Subject Request”).
20.5.2 SBS shall promptly notify Client if SBS receives a Data Subject Request.
Taking into account the nature of the Processing, SBS shall assist Client, for the
fulfilment of Client’s obligation to respond to a Data Subject Request under Data
Protection Laws. SBS shall assist Client in responding to such Data Subject Request,
to the extent SBS is legally permitted to do so and the response to such Data
Subject Request is required under Data Protection Laws. To the extent legally
permitted, Client shall be responsible for any costs arising from SBS’s provision of
such assistance.
20.6 Assistance with Client’s compliance
SBS shall provide to Client further assistance reasonably required to ensure
compliance with Client's obligations under Data Protection Laws, including with
respect to:
(a) data protection impact assessment, by providing such information and cooperation
as Client may require for the purpose of assisting Client in carrying out a data
protection impact assessment and periodic reviews to assess if the Processing of
Personal Data is performed in compliance with the data protection impact assessment;
(b) prior consultation with a data protection supervisory authority regarding high
risk Processing.
20.7 Compliance, information and audit
20.7.1 SBS has obtained third-party certifications set forth in the Security &
Compliance section on the website of SBS, which provides information on Technical
and Organizational Measures and data security. Upon Client’s written request, and
subject to the confidentiality obligations set forth in the Agreement, SBS shall
make available to Client, that is not a competitor of SBS (or Client’s independent,
third-party auditor that is not a competitor of SBS) a copy of SBS’s then most
recent third-party certifications and information regarding the IT architecture and
security, as applicable and reasonably requested.
20.7.2 Client has the right to appoint an accredited external expert at most once
per year to audit the procedures regarding the data Processing for Client. SBS will
cooperate with such audit upon a reasonable prior written notice of no less than ten
Working days. Client shall reimburse SBS for any time expended by SBS for any such
audit at SBS’s then-current professional services rates, which shall be made
available to Client upon request. Before the commencement of any such audit, the
Parties shall mutually agree upon the scope, timing, and duration of the audit in
addition to the reimbursement rate for which Client shall be responsible.
20.7.3 SBS is entitled to request that the external expert signs a confidentiality
declaration in favor of SBS. The confidentiality declaration shall contain the terms
and conditions that are usual for this type of declaration. Any report or statement
provided by the external expert shall be made available to SBS. Client shall ensure
that the audit hinders SBS 's operations as little as possible.
20.8 Records
SBS shall maintain complete, accurate and up to date records of Processing
activities carried out on behalf of its Clients.
20.9 Affiliates and Sub-processors
20.9.1 Some or all of SBS’s obligations under the Agreement may be performed by
Affiliates of SBS. For the purpose hereof an “Affiliate” means a legal entity
directly or indirectly Controlling, Controlled by, or under common Control with SBS,
for so long as such Control lasts. "Control" shall exist through the direct or
indirect ownership of more than 50% of the share capital of the legal entity or of
more than 50% of the issued share capital entitling the holders to vote for the
election of directors or persons performing similar functions. SBS and its
Affiliates have entered into intra-company arrangements, under which its Affiliates
Processing Personal Data adopt safeguards consistent with those of SBS. SBS is
responsible for compliance of its Affiliates' with this Agreement.
20.9.2 Client acknowledges and agrees that (a) SBS’s Affiliates may be retained as
Sub-processors; and (b) SBS and SBS’s Affiliates respectively may engage third-party
Sub-processors in connection with the provision of the Services. Provided always SBS
or a SBS Affiliate has entered into a written agreement with each Sub-processor
containing data protection obligations not less protective than those in this
Agreement with respect to the protection of Personal Data to the extent applicable
to the nature of the Service provided by such Sub-processor.
20.9.3 SBS shall be responsible for each of its Sub-processors to the same extent
SBS would be responsible if performing the services of each Sub-processor directly
under the terms of the Agreement.
20.10 Breach Notification
In respect of a Personal Data Breach, SBS shall:
(a) notify Client of a Personal Data Breach involving SBS or a sub-contractor
without undue delay.
(b) provide reasonable cooperation and assistance to Client in relation to any
action to be taken in response to a Personal Data Breach under applicable Data
Protection Laws, including regarding any communication of the Personal Data Breach
to the Data Subject and data protection authorities.
SBS will promptly investigate a Personal Data Breach and take reasonable measures to
identify its root cause(s) and prevent a recurrence. As information is collected or
otherwise becomes available, unless prohibited by law, SBS will provide Client with
a description of the Personal Data Breach, the type of data that was the subject of
the Personal Data Breach, and other information Client may reasonably request. The
Parties agree to coordinate in good faith on developing the content of any related
public statements or any required notices for the affected Data Subjects and/or the
relevant data protection authorities.
21. Storage, retention and deletion of Personal Data
SBS shall Process and retain data, including Personal Data, in accordance with
Applicable Law, regulations, including but not limited to national telecom
legislation and Data Protection Laws. The data, including Personal Data, submitted
to the platform of SBS shall be Processed and stored in accordance with SBS’s data
retention policy. The Personal Data shall be retained for no longer than is
necessary for providing the Services under the Agreement, for the purposes as stated
in Part I and as far as required and/or allowed under Applicable Law. SBS shall
de-identify or depersonalize data into anonymized data after the applicable
retention period. This results in data that includes no Personal Data or unique
identifiers that could later be used to refer to the Personal Data to which the data
was once associated.
22. Description of Processing
22.1 Nature and Purpose of Processing
SBS will Process Personal Data as necessary to perform the Services pursuant to the
Agreement, as further specified in the Agreement, and as further instructed by
Client in its use of the Services.
22.2 Categories of Data Subjects Client may submit data to SBS in using the Service,
the content of which is determined and controlled by Client in its sole discretion,
and which may include, but is not limited to Personal Data relating to the following
categories of Data Subjects:
• (Potential) customers (who are natural persons) of Client or its clients;
• Employees, contractors, advisors, freelancers or persons hired by (customers of)
Client;
• Contact persons of Client’s prospects, customers and business partners;
• Client’s users authorized by Client to use the Services.
22.3 Type of Personal Data
Client may submit Personal Data to the Services, the extent of which is determined
and controlled by Client in its sole discretion, and which may include, but is not
limited to the following categories of Personal Data: First and last name, Contact
information (company, address, email, phone), IP address.
23. Purposes of Processing
The Personal Data is Processed for the following purposes: Provision of the Services
as detailed in the Agreement, handling complaints and disputes, Client support,
providing information to emergency services, preventing fraud and criminal
activities on SBS’s platform.
Part III. Messaging
In the event that messaging Services are a part of the Service provided to Client
under the Agreement, the following conditions apply:
24. General
The Client is responsible for the content of all messages sent by Client and
guarantees that these comply with Applicable Law.
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 After receiving the message limit notification, Client will be able to pay for
the messages for which no payment has been received by SBS. Due and timely payment
will prevent the messaging account from being (temporarily) suspended when the
message limit is reached. Client may request an increase of the applicable message
limit. Client hereby agrees that SBS may, in its sole discretion, modify (increase
or decrease) or cancel the message limit at any time by email notification to Client
and with immediate effect. Any requested change of the message limit requires
written approval of SBS. Until the credit limit has been increased or messages have
been paid by Client, SBS has the right to suspend the Services without further
notice and/or any liability. SBS is under no obligation to send SMS messages until
payment is received and/or the limit is increased and accepts no liability for the
consequences of said SMS messages not being received by the End Users.
26. Additional Terms and Conditions OTT, Social Media and Push
Services
26.1 OTT, social media and Push Services provide the Client with the possibility to
communicate, share information with, and regarding individual End Users using OTT,
social media applications and/or in-app push messaging. It is the sole
responsibility of the Client to ensure the communication, the information obtained
and sent to the End User is sufficiently secured and protected, and that Client has
obtained the required informed consent of each individual End User, or has a lawful
basis, before Processing or transferring any information of said End User using OTT,
social media channels or push messaging. SBS shall not have any responsibility in
this regard and SBS shall provide (access to) OTT, social media and Push Services
and all information on “as is” and “as available” basis.
26.2 The terms and conditions of the organizations providing the various OTT, social
media platforms and services integrated in the Service are applicable to the use of
the Service by Client. It is Clients responsibility to ensure compliance with said
general terms and conditions and Applicable Law. Client shall indemnify, defend and
hold harmless SBS and its affiliates against all liabilities, losses, damages,
claims, penalties, fines and costs (including reasonable legal costs) resulting from
or arising out of the failure by Client to comply with terms and conditions
applicable to the Clients use of OTT, social media and Push Services.
27. Additional Terms and Conditions WhatsApp Business Solution
In the event that WhatsApp Business Solution is a part of the Service provided to
Client under the Agreement, the following conditions apply and Client hereby
unconditionally accepts and agrees to the WhatsApp Business Solution Terms:
www.whatsapp.com/legal/business-solution-terms. Notwithstanding anything in this
Agreement to the contrary, 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. In the event SBS and/or WhatsApp do not approve
and/or accept Client, this Agreement shall for the provision of WhatsApp Business
Solution be null and void.
In connection with Customer’s use of WhatsApp Business Solution, Client may not
grant any third party service provider (hereinafter referred to as ‘Independent
Software Vendor’ and/or ‘ISV’) access to the WhatsApp Business account of Client
and/or Client’s WhatsApp Business Traffic, unless the Client and ISV have signed the
WhatsApp ISV Terms. SBS reserves the right to immediately suspend Client’s use of
WhatsApp Business Solution in the event Client provides access to and/or engages an
ISV without prior acceptance of the ISV Terms by Client and the ISV, and approval of
the ISV by WhatsApp. If Client intends to, or has engaged and ISV Client shall
immediately notify SBS, provide the information of the ISV as reasonably requested
and shall comply with the WhatsApp ISV Terms.
Part IV. Voice
In the event that Voice Services are a part of the Service provided to Client under
the Agreement, the following conditions apply:
28. Additional Terms and Conditions Voice
28.1 Client represents and warrants that it will refrain from:
(i) using the Voice Services for other than normal use as intended by SBS,
(ii) infringing intellectual property rights of third parties,
(iii) misusing allocated access codes or issuing such to third parties,
(iv) teasing, spamming, offending, causing hurt or annoyance, hacking or causing a
nuisance in some other way,
(v) establish connections on a large scale to sales numbers or services,
(vi) as well as every action as a result of which payments owing to SBS are
improperly restricted.
28.2 Client shall not use or permit others to use the Voice Services in a manner
that is fraudulent or unauthorized. SBS may, without notice and without liability,
interrupt all Client's communications to prevent or terminate fraudulent and/or
unauthorized activities.
28.3 SBS is obligated to use reasonable efforts to enable interoperability of
services in order to make telephone numbers reachable from as many networks as
possible. However, SBS must rely on the interoperability of services of Operator(s)
in each country for end-to-end connectivity. SBS does not warrant and represent that
all telephone numbers from all networks will be reachable at all times.
28.4 Client is responsible to securely connect its network or systems with the
Platform of SBS. Client is responsible for all Traffic submitted to the Platform of
SBS or initiated from the Client account and is without exceptions also fully
responsible for the payment of all aforementioned Traffic. Client is responsible for
its own calling behavior, call destinations and Traffic to and/or through the
Platform of SBS.
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 that comes through the Platform of SBS via the connection of Client.
Withholding that actual location information - intentionally or by accident - is in
any case, but certainly in the event of trying to lower costs, considered to be
unreasonable use of the Service by Client and is strictly forbidden. In this event,
SBS may take immediate proportionate measures including but not limited to applying
a surcharge and disconnecting the Service.
28.6 Client shall indemnify, defend and hold harmless SBS and its affiliates against
all liabilities, losses, damages, claims, penalties, fines and costs (including
reasonable legal costs) resulting from or arising out of the failure by Client to
comply with this clause.
29. Obligations of the Client
29.1 Without prejudice to the other provisions of the Terms and Conditions, the
Client is fully responsible and liable for the content of each Document, the
identity and identification of End Users and the power of representation of the End
User. In respect of the foregoing, SBS does not provide any guarantee and does not
carry out any checks as to the identity or authority of End Users or the content of
Documents.
29.2 Client guarantees and warrants that it has all necessary consents from the End
User to send the Document, including the use of the End User's Personal Data and the
use of electronic communication services for the provision of Documents to the End
User.
29.3 Client indemnifies SBS against damages and claims by third parties, including
but not limited to the End User, which are the result of, or are based on the ground
that the Documents contain inaccuracies, defects or incompleteness, or are in
conflict with Laws and Regulations.
29.4 It is not permitted to distribute information that infringes the rights of
third parties or to offer content through the Service and/or Documents that is
manifestly fraudulent, defamatory, racist, discriminatory and/or in any other way
unlawful, spread spam, unsolicited communications or malicious content such as
viruses.
30. Storage of Documents
30.1 Subject to clause 9 of these Terms and Conditions, SBS will treat all Documents
as confidential information and store the Documents securely on the Platform.
32.2 Documents will be stored by SBS on behalf of the Client for a limited period,
unless agreed otherwise in writing. SBS will not store the Documents for longer than
is necessary for the delivery of the Service.
30.3 Client is responsible for the storage and retention of the Documents as made
available to Client by SBS through the Service.
Part VI. Pre-paid
In the event that Client uses any Service(s) on a Pre-Paid Basis and/or account, the
following conditions apply:
31. Additional Terms and Conditions Pre-Paid
31.1 Pre-Paid Client: The Client who uses the Service on a pre-paid basis. The
Pre-Paid Client will make occasional payments to SBS in accordance with an Order,
which are credited to its account. The credit allows the Pre-Paid Client to use the
Services.
31.2 If Client has a pre-paid account, charges are incurred for the use of some
Services, which are debited from Clients’ pre-paid account. Services subject to
charges can only be used if the applicable minimum amount has been paid into the
Pre-Paid Clients’ account.
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.
31.4 The Pre-Paid Client is in default if a credit card payment is being charged
back. In such a case, SBS is entitled to terminate the Pre-Paid Client’s account
when a credit card payment is charged back.
31.5 Client will indemnify SBS against misuse of pre-paid balance by third parties.
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.
Registration may only be made once per person or legal entity. The account will be
deleted if the account is not charged within three (3) months of registration, or
within three months after all credit has been used.
Part VII. Data Services
In the event that Data Services are a part of the Service provided to Client under
the Agreement, the following conditions apply:
32. Additional Terms and Conditions Data Services
32.1 Client agrees to, and shall ensure compliance with said terms and conditions.
In case of conflict between the Terms and Conditions and the Data Services Terms,
the latter prevail.
32.2 Data shall be submitted by Client or suppliers of Client to SBS in a secure
manner, by uploading to SBS servers via a secure connection or the delivery of data
carriers in a format supported by SBS.
32.3 Client is responsible for the safe and correct delivery of the Data to SBS by
Client and its suppliers and shall ensure that a continuously working connection is
set up and maintained between the Client’s platform and SBS’s platform. If the Data
is held by suppliers of Client, Client shall instruct these suppliers to transfer
the data to a location designated by SBS.
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 capable of altering, deleting or interfering with any data,
information, software or (sub)systems of SBS.
32.5 The Service and any results or reports generated by the Client using the
Service provided by SBS are based on the Data, events and information provided by
the Client and the concepts, disciplines and procedures used and adopted by SBS,
including the SBS P, and SBS does not warrant that the same will necessarily be
achieved by other parties.
32.6 Except as expressly set forth herein, the Service and the subsequent results
are provided “as is” and “as available”. SBS makes no further warranties or
representations of any kind, express or implied for the Service and the results
provided. SBS disclaims any warranty of merchantability or fitness for a particular
purpose and will not be responsible for any damages that may be suffered by Client
or any third party resulting from the Service and/or the results provided.
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) for the total duration of the Agreement. In
no event, shall the total compensation for the aggregate of any and all claims under
this Agreement exceed one hundred thousand Kenyan Shilling (KES 100,000).