BY CLICKING ON THE ‘AGREE TO TERMS AND CONDITIONS’ BUTTON OR ACCESSING OR USING THE CLOUD SERVICES, ON YOUR OWN BEHALF AND ON BEHALF OF ANY PERSON WHO USES THESE CLOUD SERVICES, YOU ACCEPT THE DUTIES AND LIABILITIIES UNDER THESE TERMS AND CONDITIONS (INCLUDING ANY UPDATES, SUPPLEMENTAL TERMS AND SCHEDULES) ON YOUR OWN BEHALF AND ON BEHALF OF EVERY CONSUMER OF THE CLOUD SERVICES OR CUSTOMER, AND YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS AND YOU HAVE READ, UNDERSTOOD AND FULLY ACCEPTED THESE TERMS AND CONDITIONS.

AKILIAFRICA LIMITED is a limited liability company incorporated under the Companies Act, Laws of Kenya and such other succeeding laws as may be applicable, of P. O. Box 46505-00100, Longonot Place, Kijabe Street, Nairobi, Kenya (hereinafter called “AkiliAfrica” which expression shall where the context so admits include its successors and assigns);

THE CONSUMER OF SERVICES OR THE CUSTOMER is any person, individual, company, corporation, parastatal, Partnership, Organization or any other entity that agrees to these Terms and Conditions by clicking on the ‘Agree to Terms and Conditions’ button, or consumes, makes an order, or subscribes to, or purchases, or gains access to, or installs, or in any way sets up, or uses the Cloud Services (hereinafter called “The Customer” which expression shall where the context so admits include its successors, executors and assigns);

WHEREAS:

  1. AkiliAfrica is in the business of providing software and IT solutions, and the Customer requires AkiliAfrica to provide Cloud Services which include Subscription, Training, and Set Up Assistance, (hereinafter referred to as ‘Cloud Services’), together or separately as particularised in these Terms and Conditions.
  2. The Customer has requested for and is willing to purchase the Cloud Services as per the selection and payment made by the Customer and the Customer agrees to act in accordance with these Terms and Conditions. These Terms and Conditions are made in light of the Partnership between AkiliAfrica and Microsoft Corporation, and may be altered from time to time on account of changes in the relationship between AkiliAfrica and Microsoft Corporation, or any other considerations at AkiliAfrica’s sole discretion, without notice to the customer.
  3. AkiliAfrica has agreed to provide the Services to the Customer on a non-exclusive basis under these Terms and Conditions.
  4. The Customer, by clicking on the “Agree to Terms and Conditions” button or making an order for the Cloud Services or by making a purchase or by installing or by setting up the Cloud Services in any manner or by in any way gaining access to the Cloud Services or in any way accessing and using the Cloud Services is deemed and agrees to be deemed as having bound themselves to the requirements of these Terms and Conditions and shall be required to perform the duties provided herein and to bear such liabilities arising therefrom.
  5. The Customer confirms and agrees that these Terms and Conditions may be amended and/or updated from time to time by AkiliAfrica at its discretion, and Customer has a duty to stay appraised with such changes as they are made.

NOW THESE TERMS AND CONDITIONS WITNESSES as follows:

  1. DEFINITIONS
  2. In these Terms and Conditions unless inconsistent with the context or otherwise specified the following definitions will apply:

    1. Terms and Conditions” means these Terms and Conditions, and includes all appendices and exhibits (if any) to these Terms and Conditions including all such updates and amendments that AkiliAfrica may from time to time make.
    2. Confidential Information” means any data or information, other than Trade Secrets, that is of value to Customer or to AkiliAfrica and is not generally known to competitors of Customer or to competitors of AkiliAfrica. Confidential Information shall include, but is not limited to, lists of Customer’s or AkiliAfrica’s current or potential customers, the identity of various suppliers, information about Customer’s or AkiliAfrica’s executives and employees, financial information, price lists, pricing policies, and Customer’s or AkiliAfrica’s business methods. Confidential Information shall also include information of the type described above which Customer or AkiliAfrica obtains from another party and which Customer or AkiliAfrica treats as Confidential Information, whether or not owned or developed by Customer or AkiliAfrica.
    3. Execution” means clicking on the “Accept Terms and Conditions” button after the Customer has made an Order for Cloud Services, and this action will indicate that the person making the Order is the Customer and/or has capacity to bind the Customer, and the person being the Customer and/or having bound the Customer shall be liable under these Terms and Conditions. Access and use of the Cloud Services will be construed as acceptance of these Terms and Conditions and shall be equally binding.
    4. Trade Secrets” shall mean any technical or scientific information, design, process, procedure, formula or improvement or any portion or phase thereof, whether or not patentable, that is of value to The Customer or to AkiliAfrica and is not generally known to competitors of The Customer or to competitors of AkiliAfrica. Trade Secrets shall include, but are not limited to, unpatented information relating to the development, manufacture or servicing of The Customer or AkiliAfrica products, information concerning proposed new products, market feasibility studies, proposed or existing marketing techniques or plans. Trade Secrets also include any information of the type described above which The Customer or AkiliAfrica obtains from another party and which The Customer or AkiliAfrica treats as a trade secret, whether or not owned or developed by The Customer or AkiliAfrica.
    5. Annual Customers” means Customers who have a valid annual or multi-year contract for Cloud Services.
    6. Quarterly Customer” means Customers who have a valid quarterly contract for Cloud Services with no annual or commitment and payment.
    7. Monthly Customer” means Customers who have a valid monthly contract for Cloud Services with no annual or multi-year commitment.
    8. Cloud Services” means the Microsoft Corporation cloud services that AkiliAfrica customises and provides to the Customer. Access to the Cloud Services requires agreement to these Terms and Conditions/Terms and Conditions and Subscription, as required by the specific offering.
    9. Customer Data” means any data provided by Customer to AkiliAfrica by and through the Software, Cloud Services, Support, Training and Setup Assistance and any other products or services offered under these Terms and Conditions.
    10. Intellectual Property Rights” means all intellectual property rights and industrial property rights (throughout the universe, in all media, now existing or created in the future, for all versions and elements, in all languages, and for the entire duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not perfected, including, without limitation, patent rights, copyrights, trade secret rights, and trademark rights.
    11. Subscription Period” means, with respect to Cloud Services, the time period for which Customer has purchased the right to receive the Cloud Services.

     

  3. RIGHTS TO ACCESS AND USE CLOUD SERVICES
  4. Subject to the terms of these Terms and Conditions, AkiliAfrica grants Customer a nonexclusive, non-transferable, worldwide right to access and use the Cloud Services described in these Terms and Conditions solely for Customer’s internal business for the Cloud Services.

    1. Subscription to Cloud Services
      1. The Subscription for the Cloud Services may be made on a monthly, quarterly, or annual basis as per the Customer’s order and payment.
      2. The User of the services subscribed to by the Customer shall either be a Full User or Limited User, depending on the Customer’s order and purchase. The Full User shall have unrestricted, direct and indirect access to all of the functionality of the Subscription services including administrator and write capabilities, while the Limited User will have restricted access including full read and access function but limited write functionalities.
      3. Any services provided under these Terms and Conditions may be updated changed or dropped and the terms and conditions attendant to each of the services may be changed from time to time at AkiliAfrica’s sole discretion.
      4. The Subscription may be renewed at the expiry of the initial Subscription, and the customer will be required to make the purchase and payments well in advance and at least ten (10) days.
      5. Subscription does not entitle the Customer to Training or Setup Assistance, and each service must be ordered and purchased separately subject to the Terms and Conditions herein.
    2. Training
      1. Requests for Training shall be made by the Customer by official Order, and bookings shall be made on a first come first served basis.
      2. AkiliAfrica shall have the sole discretion to deliver the Course content, which may be changed without notice, but AkiliAfrica will ensure that the Training conforms materially to the Order made by the Customer.
      3. Any training materials provided by AkiliAfrica shall only be used for purposes of the training and the Customer shall not distribute it without AkiliAfrica’s authorization.
      4. Training sessions shall be offered by AkiliAfrica on the scheduled dates and times as indicated in the online booking and purchase system, and the dates and times shall not be subject to change, except at the full discretion of AkiliAfrica.
      5. Requests by the Customer to change the dates of Training shall be made at least seven (7) days before the scheduled date, and any changes on date schedules shall depend on availability of training slots on the requested dates and ability of AkiliAfrica to schedule a replacement training on the initial scheduled date. If a request for date rescheduling is successful, the same shall be communicated to the Customer within a reasonable time.
      6. AkiliAfrica shall not make any refund for payments made by the Customer, if the Customer’s request for rescheduling is unsuccessful or if the Customer’s personnel or designated persons fail to attend the training sessions on the designated dates and times.
    3. Set Up Assistance
      1. Once an Order for Setup Assistance is made to AkiliAfrica by the Customer, and the Customer’s payment is received by AkiliAfrica, the Setup Assistance shall be conducted at an agreed location at a date and time agreed between the Customer and AkiliAfrica.
      2. Dates and times for Setup Assistance shall be determined at AkiliAfrica’s convenience.

     

  5. RESTRICTIONS AND PROHIBITED USE
    1. The Customer may not access or use Cloud Services if Customer is a direct competitor of AkiliAfrica or for monitoring the availability, security, performance, functionality, or for any other benchmarking or competitive purposes without AkiliAfrica’s express written permission;
    2. The Customer will not sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Cloud Services available to any third party; or
      1. Attempt to gain unauthorised access to the Cloud Services, engage in any denial of service attacks, or otherwise cause immediate, material, or ongoing harm to AkiliAfrica, its provision of the Cloud Services, or others;
      2. Impersonate or misrepresent an affiliation with a person or entity;
      3. Use the Cloud Services to initiate or propagate Malware;
      4. Use the Cloud Services for any purpose that violates applicable law or regulation, infringes on the rights of any person or entity, or violates these Terms and Conditions.
    3. Sharing of Customer Subscriptions:
      1. Customer Subscriptions shall not be shared or used by more than the subscribed number of users. A Subscription may be reassigned to the Customer’s assigns with the written authorisation of AkiliAfrica.

     

  6. SUSPENSION OF SERVICE
    1. AkiliAfrica may suspend the Cloud Services:
      1. If AkiliAfrica deems it necessary to prevent or terminate any actual or suspected Prohibited Use; or if the Customer commits a material breach of these Terms and Conditions;
      2. If AkiliAfrica receives notice from Microsoft Corporation or other sources that the Customer is in material breach of the Terms and Conditions;
      3. If AkiliAfrica determines that the volume of data being transmitted or processed through the Cloud Services under Customer’s account is significantly greater than the average use or may cause degradation of the Cloud Services for Customer or other Customers; or
      4. In the event of a threat to the security and integrity of the cloud services and/or Customer Data.
      5. If for any reason AkiliAfrica is unable to deliver the services to the Customer, in which case AkiliAfrica will notify the Customer at least thirty (30) days before the suspension. This provision for Notice shall only apply in instances where the suspension was foreseeable.
    2. Suspension of Cloud Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including Customer's obligation to pay fees.
    3. Updates and Upgrades
      1. The Customer must have an active Subscription to the Cloud Services in order to receive Updates (patches meant to correct bugs or add new compatible hardware support within the Cloud Services) and Upgrades to the Cloud Services which are meant to advance the Cloud Services to the next version.
      2. The Upgrades and Updates shall be subject and conditional on Microsoft Corporation’s updates and such updates once installed and effected by AkiliAfrica will be released and updated on the Customer’s Subscription at the discretion of AkiliAfrica.

     

  7. AKILIAFRICA’S OWNERSHIP RIGHTS
  8. AkiliAfrica owns exclusively and reserves all rights subject to Microsoft Corporation’s rights, to the Cloud Services and the Customer may not exercise any, right, title, and interest in and to the Cloud Services including, without limitation, all Intellectual Property Rights in and to the Cloud Services. These Terms and Conditions are not an agreement of sale, and no title, Intellectual Property Rights, or ownership rights to the Cloud Services are transferred to the Customer pursuant to the Terms and Conditions.

    The Customer acknowledges and agrees that the Cloud Services and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Cloud Services all future updates, upgrades, and all other improvements, revisions, corrections, modifications, enhancements, releases, and policy, database, and other updates in, of, or to the Cloud Services all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and reserved to and proprietary property of AkiliAfrica.

  9. RIGHT TO USE CUSTOMER DATA
  10. The Customer hereby grants AkiliAfrica a limited, non-exclusive, royalty-free, right to access and use the Customer Data as necessary to provide the Cloud Services and technical support, to maintain or improve the Cloud Services and other related products, including to develop updates, upgrades, and improvements; and for all other lawful purposes during the term of these Terms and Conditions.

  11. TECHNICAL SUPPORT
  12. The Cloud Services under these Terms and Conditions are of a self-service oriented nature and therefore AkiliAfrica will only provide the relevant materials for the various Cloud services products on AkiliAfrica’s website (http://nav.akiliafrica.com:49000/main.aspx?lang=en&content=madeira-get-started.html). In very serious cases, AkiliAfrica will provide technical support to the Customer on email.

  13. TERM AND TERMINATION
    1. Term
    2. These Terms and Conditions will continue until the termination of the Cloud Services by effluxion of time, unless terminated sooner in accordance with these Terms and Conditions.

    3. Termination
      1. Subscription: These Terms and Conditions will terminate immediately upon the expiry of the Subscription Period attendant to the product purchased by the Customer.
      2. Training: These Terms and Conditions will terminate upon expiry of each training period making up a module or course as purchased by the Customer.
      3. Setup Assistance: These Terms and Conditions shall terminate upon completion of the Setup Assistance of the Cloud Services in accordance with AkiliAfrica’s standards. These Terms and Conditions will also lapse if the Setup Assistance as paid for by the customer is not conducted within 6 months on account of any reason by the Customer either on account of the Customer’s unavailability or otherwise despite AkiliAfrica being ready, able, and willing to conduct the Setup Assistance.
    4. General Termination Clauses
      1. Either Party may terminate these Terms and Conditions for breach immediately upon notice to the other Party if the other Party commits a material breach of these Terms and Conditions and fails to cure such breach within five (5) business days after receipt of the written notice specifying the breach. If the Customer is the party terminating, AkiliAfrica will not be liable to give refunds of whatever nature to the customer.
      2. These Terms and Conditions will terminate automatically and without notice if the Customer dies, or becomes incapable of acting as a legal person, or becomes the subject of any involuntary Bankruptcy Proceeding which is not dismissed or otherwise terminated within 30 days of commencement, or the Customer voluntarily commences or accedes to any Bankruptcy Proceeding.
      3. Upon termination of these Terms and Conditions, the Cloud Services will terminate and AkiliAfrica will provide the customer with the Customer’s Data without any functionality.
      4. After the termination of the Cloud Services, the Customer agrees that AkiliAfrica has no obligation to retain Customer Data, which may be irretrievably deleted.

     

  14. PAYMENTS AND TAXES
    1. Payments
      1. The Customer will pay AkiliAfrica the fees and amounts set forth on AkiliAfrica’s website at the point of Purchase of the Cloud Services, which amounts are exclusive of taxes (except in specific cases where certain taxes are separately indicated) and other statutory payments.
      2. Cloud Services shall not be provided unless the requisite amounts are fully received in advance by AkiliAfrica. Once the Customer’s payment is received, AkiliAfrica will provide the services within seventy-two (72) hours from the time of receipt of the payments.
      3. All payment obligations are non-cancellable and non-refundable. If Customer believes a quotation or payment request is incorrect, Customer shall contact AkiliAfrica in writing within twenty-four (24) hours from the date of the request in order to be eligible to receive an adjustment or credit.
    2. Invoices
    3. Invoices shall be forwarded to the customer within thirty (30) days from the date of receipt of payment by AkiliAfrica.

    4. Taxes
    5. The Customer shall separately pay all applicable transaction taxes, including, but not limited to, sales and use taxes, value added taxes, duties, customs, tariffs, and other government-imposed transactional charges however designated (and any related interest or penalty) on amounts payable by Customer under these Terms and Conditions. Taxes are not included in the amounts payable to the amount payable for the Cloud Services. The Customer will therefore make all payments for taxes over and above the amounts for Cloud Services.

  15. CONFIDENTIALITY
  16. In connection with these Terms and Conditions, each party may receive or have access to confidential information and materials of the other party. The Customer acknowledges that AkiliAfrica's pricing, Cloud Services content, procedure, access codes and non-public information regarding the Cloud Services and AkiliAfrica’s Intellectual Property Rights are AkiliAfrica’s Confidential Information.

    Each party will take reasonable precautions (at least as great as the precautions it takes to protect its own confidential information) to prevent unauthorised use or disclosure of the other party’s Confidential Information in its possession. Neither party will disclose any Confidential Information of the other party to any third party during the term of these Terms and Conditions and for as long thereafter as the Confidential Information remains competitively sensitive, but not in any event for less than 7 years following the termination of these Terms and Conditions, or use any Confidential Information of the other party except in the performance of its obligations or exercise of its rights under these Terms and Conditions.

  17. DATA PROTECTION
  18. The Cloud Services may employ applications and tools to collect Customer Data that includes one or more data elements that can be used to identify a natural person (“Personal Data”). For the purpose of the Terms and Conditions, with respect to Personal Data, the Customer and AkiliAfrica acknowledge that AkiliAfrica is a Data Processor and Customer is a Data Controller.

    1. AkiliAfrica will collect, process, copy, backup, store, transfer and use (collectively “Process”) Personal Data. Processing may take place in, from, and to potentially outside of the Customer’s Country of residence.
    2. For Personal Data originating from Customer, the Customer is solely responsible for securing any privacy related rights and permissions from individual persons and third parties as required by regulation, statute, or other law, or by Customer’s internal policies or guidelines, in order to use the Cloud Services or disclose to AkiliAfrica any personally identifiable information.
    3. Where required in support of the permitted uses under these Terms and Conditions, Personal Data may be shared with third parties, including vendors, suppliers, and partners. AkiliAfrica will restrict access to Personal Data to the extent needed for performance and will impose written contractual obligations that are no less protective of the Personal Data than those obligations set forth in these Terms and Conditions.
    4. AkiliAfrica may use cookies to store Customer session information, access codes, and application settings to ease site processes.

     

  19. INTELLECTUAL PROPERTY
  20. The Cloud Services Intellectual Property Rights are the sole and exclusive property of AkiliAfrica or its licensors, who retain sole ownership of all right, title and interest in them, as well as any derivative works thereof. These ownership rights include all Intellectual Property Rights. The Customer agrees, on behalf of itself and its Subsidiaries, that the Customer and its Subsidiaries will take no action inconsistent with AkiliAfrica’s Intellectual Property Rights. The Customer agrees that AkiliAfrica has the unrestricted right to use suggestions and feedback provided by the Customer regarding products and services of AkiliAfrica and its affiliates, without notice to, payment to, or consent from Customer, and that the Customer will treat such suggestions and feedback as the Confidential Information of AkiliAfrica, and not the Customer.

  21. WARRANTY
  22. AkiliAfrica warrants that the Cloud Services will perform substantially in accordance with the information in AkiliAfrica’s website. This warranty is personal to Customer and may not be assigned, transferred or passed-through to any third party.

    This warranty will not apply if:

    1. The Cloud Services are not used in accordance with these Terms and Conditions.
    2. The Cloud Services have been modified by any person or entity other than AkiliAfrica; or
    3. A malfunction in the Cloud Services has been caused by any systems, equipment or technology not supplied by AkiliAfrica.
    4. Where the cause of the malfunction is beyond AkiliAfrica’s control and foreseeability.

     

  23. LIMITATION OF LIABILITY
    1. The sole and exclusive remedy, and AkiliAfrica’s entire obligation and liability, for AkiliAfrica’s breach of warranty under these Terms and Conditions is for AkiliAfrica to provide the Cloud Services to conform with the indications on AkiliAfrica’s website. If AkiliAfrica is unable to do so, AkiliAfrica may, in its own discretion, allow Customer to terminate the Cloud Services immediately upon notice to AkiliAfrica. In such event, if Customer paid fees directly to AkiliAfrica, AkiliAfrica will provide to Customer a pro-rata refund of the fees paid under these Terms and Conditions for the remainder of the then current monthly quarterly or annual term.
    2. The customer takes the services “as is” and “with all faults” and AkiliAfrica makes no representations or warranties, and disclaims all representations, warranties, and conditions, oral or written, express or implied, arising from course of dealing, course of performance, or usage in trade, or otherwise, including, without limitation, implied warranties of merchantability, quality, fitness for a particular purpose, title, non-infringement, or systems integration.
    3. Without limitation, AkiliAfrica does not represent or warrant any of the following:
      1. That any Cloud Service, device, network, support, or system will operate uninterrupted or be failsafe or error-free; or
      2. That any Cloud Service, device, advice, report, or data, will be free from errors or comply with any particular law; or
      3. Any business results customer may achieve; or
      4. That any or all system vulnerabilities or weaknesses will be discovered; or
      5. Complete protection against any security threats or other possible risks.
    4. The Cloud Services may fail and are not designed, developed, tested, or intended to be reliable in the context of high risk systems. AkiliAfrica has no responsibility for, and customer will indemnify and hold harmless AkiliAfrica, its affiliates and representatives from, all claims, suits, demands, and proceedings alleging, claiming, seeking, or asserting, any liability, loss, obligation, risk, cost, damage, award, penalty, settlement, judgment, fine, or expenses (including attorneys’ fees) arising from or in connection with customer’s use of the products.
    5. Internet delays: The Cloud services may be subject to limitations, delay and other problems inherent in the use of the internet and electronic communications. AkiliAfrica is not responsible for any delays, delivery failures, or damages resulting from such problems.
    6. Security: No data transmission over the internet can be guaranteed to be secure. AkiliAfrica is not responsible for any interception or interruption of any communications through the internet or networks or systems outside of AkiliAfrica’s control. Customer is responsible for maintaining the security of its networks, computers, software, and access codes.
    7. No consequential damages: Under no circumstances will AkiliAfrica be liable for any indirect, special, incidental, punitive, exemplary, consequential, or extra-contractual damages of any kind or loss of profits, loss of goodwill, loss of personnel salaries, computer or system failure or malfunction, costs of obtaining substitute software or cloud services, work stoppage, denial of access or downtime, system or service disruption or interruption, or any lost, damaged, or stolen data, information, or systems. AkiliAfrica will not be liable for any damages arising from or relating to allegations or claims that the cloud services were not failsafe, did not operate interruption or error-free, or did not protect against all security breaches or all possible security threats, malfunctions, malicious code or other vulnerabilities or errors in any cloud services or software caused by virus, infection, worm or similar malicious code, in all cases regardless of legal theory and whether or not foreseeable, even if the exclusive remedies provided by these Terms and Conditions fail of their essential purpose and even if either party has been advised of the possibility or probability of such damages. These limitations do not apply to AkiliAfrica’s indemnification obligations; to AkiliAfrica’s gross negligence or wilful misconduct; or to any limitation to the extent prohibited by applicable law.
    8. Regardless of whether a claim for damages is based in contract, tort including negligence or any other legal theory, in no event will the aggregate total liability of AkiliAfrica under these Terms and Conditions or in connection with the subject matter of these Terms and Conditions exceed:
      1. For monthly and quarterly customers, to the fees paid under these Terms and Conditions for one (1) month immediately preceding the event giving rise to the claim; or
      2. For annual customers, to the fees paid under these Terms and Conditions for three (3) months immediately preceding the event giving rise to such claim; or
      3. For any other claim for training services, setup assistance or other services provided by AkiliAfrica, a maximum of 5% of all the monies paid by the customer.
    9. These limitations do not apply to AkiliAfrica’s indemnification obligations.

     

  24. WAIVER
  25. A party’s failure or delay in enforcing any provision of these Terms and Conditions will not operate as a waiver of the right to enforce that provision or any other provision of these Terms and Conditions at any time. No waiver of any provision of these Terms and Conditions will be valid unless in writing, specifying the provision to be waived, and signed by the party agreeing to the waiver.

  26. GOVERNING LAW AND DISPUTE RESOLUTION
  27. These Terms and Conditions and any dispute arising out of or relating to it will be governed by the Laws of Kenya, without regard to conflict of laws principles. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980). Any dispute arising out of or relating to these Terms and Conditions will be resolved as follows: either party will deliver notice of the dispute, including a detailed description of the dispute, together with relevant supporting documents. Senior management from each party will then attempt to resolve the dispute. If the parties do not resolve the dispute within 30 days of the dispute notice, either party may deliver notice of a demand for Arbitration in accordance with the Laws of Kenya, and the seat of Arbitration shall be in Kenya, unless the seat of Arbitration is agreed at a different location by mutual consent. The parties will then try to resolve the dispute with an Arbitrator. If the parties do not resolve the dispute within 60 days after the mediation demand, either party may begin litigation. The dispute resolution process in this section will not apply to claims for misappropriation of trade secrets or breach of confidentiality obligations if the requested relief includes injunctive or other non-monetary relief.

  28. NOTICES
  29. All legal notices to AkiliAfrica under these Terms and Conditions must be sent both by email and hard copy at the address provided at AkiliAfrica’s website. All legal notices to Customer may be sent using the contact information on file with AkiliAfrica, as specified in the registration information provided by Customer when purchasing the Cloud Services.

    Notices shall be deemed effective upon receipt. It is Customer’s obligation to ensure AkiliAfrica has the most current contact information.

  30. MODIFICATION TO TERMS
  31. AkiliAfrica reserves the right to modify these Terms and Conditions at any time, effective upon the posting of an updated version at http://nav.akiliafrica.com:49000/main.aspx?lang=en&content=madeira-get-started.html. The Customer is responsible for regularly reviewing these Terms and Conditions. Use of the Cloud Services after any such change shall constitute Customer’s consent to the changes.

  32. ASSIGNMENT
  33. The Customer may not assign these Terms and Conditions, whether by contract, operation of law or otherwise, without the prior written permission of AkiliAfrica. Any attempt by the Customer to assign these Terms and Conditions, including any rights, duties, or obligations under these Terms and Conditions, without AkiliAfrica’s written consent will be a material breach of these Terms and Conditions and will be null and void. AkiliAfrica may assign these Terms and Conditions in its sole discretion.

  34. FORCE MAJEURE
  35. AkiliAfrica will not be liable for any delays, failures to perform, damages, losses, destruction, or malfunction, or any consequence thereof, caused by forces of nature or any other cause beyond its reasonable control.

  36. ENTIRE TERMS AND CONDITIONS
  37. These Terms and Conditions represents the entire Terms and Conditions between the parties and expressly supersedes and cancels any other communication, representation, or advertising whether oral or written, on the subjects herein. The express provisions of these Terms and Conditions control over any course of performance, course of dealing, or usage of the trade inconsistent with any of the provisions of these Terms and Conditions.

  38. SEVERABILITY
  39. The parties intend that if a court holds that any provision or part of these Terms and Conditions is invalid or unenforceable under applicable law, the court will modify the provision or part to the minimum extent necessary to make it valid and enforceable, or if it cannot be made valid and enforceable, the court will sever and delete the provision or part from these Terms and Conditions. Any change to or deletion of a provision or part of these Terms and Conditions under this section will not affect the validity or enforceability of the remainder of these Terms and Conditions, which will continue in full force and effect.

  40. REMEDIES
  41. All remedies available to either party for breach of these Terms and Conditions are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies.

  42. RELATIONSHIP
  43. The relationship of AkiliAfrica and Customer established by these Terms and Conditions is that of independent contractors, and nothing contained in these Terms and Conditions gives either party the power to direct and control the day-to-day activities of the other party; or constitutes the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking; or allows either party to create or assume any obligation on behalf of the other party. The relationship contemplated by these Terms and Conditions is non-exclusive and does not prohibit either party from entering into any arrangements with any third parties.

  44. EXECUTION
  45. IN WITNESS WHEREOF the parties have duly executed these Terms and Conditions on the date of acceptance of clicking on “Accept Terms and Conditions.”

 

6 October 2017