SOFTWARE AS A SERVICE AGREEMENT

Last updated March 16, 2023

PARTIES:

1. CHIKA LIMITED, a private company with limited liability incorporated under the Companies Act No. 17 0f 2015 of the laws of Kenya, having its corporate seat in H6, Green Valley Convent Road, Lavington Nairobi. (“CHIKA LIMITED”); And
2. The Customer; a company, or its legal representative with a confirmation or order with CHIKA LIMITED for the lease of the service. (“Customer”);
The parties mentioned above hereinafter also to be referred to as the “Parties” and each individually as a “Party”.

INTRODUCTION

A. CHIKA LIMITED, we understand that service interruptions impact the just-in-time delivery and user experience of instructions. That’s why CHIKA LIMITED puts great effort in delivering services with the highest standards in performance, reliability and availability. Customer should be able to fully depend on CHIKA LIMITED for the creation and delivery of user guides and instructions. At CHIKA LIMITED we understand that the business of Customer relies on us.
B. The Customer wants to use the Service provided by CHIKA LIMITED.
C. CHIKA LIMITED and the Customer have agreed to enter into this Software as a Service Agreement (the “SaaS Agreement”). The SaaS Agreement will hereafter govern Parties’ respective rights and obligations towards each other.

AGREEMENT:

1. DEFINITIONS

Applicable Laws: All statutes, laws, regulations, legislation, guidelines, ordinances, decrees, codes and other legal requirements by any competent authority, together with any judgements, injunctions, orders or other similar requirements of any competent court, administrative agency or other legal adjudicatory authority, in effect at the time in question, which are applicable in Kenya and/or in respect of the provision of the Service and this includes but not limited to those relating to contraband or counterfeit products, anti-corruption, anti-bribery, anti-terrorism, conflicts of interest, economic sanctions and anti-boycott.
Competent Authority: Any national, federal, state, country, municipal, provincial, local, county or other government or any department, commission, board, court, agency, committee or quasi-governmental unit, including any utilities board, local authority or statutory or any other jurisdiction that may be applicable in the relevant context.
SaaS Agreement: This Software as a Service agreement.
SLA: The Service Level Agreement entered into by CHIKA LIMITED and the customer upon approval of the confirmation of order.
SLA Fee: The fee that the Customer must pay to CHIKA LIMITED for the use of the Software as provided at section 5 hereof.
Personal Information: Information or pieces of information that could (directly or indirectly) allow individual persons to be identified.
Software: The computer software offered by CHIKA LIMITED to the Customer including Source code, object code, net lists, design tools, user interfaces, Applications, programming, interfaces, protocols and formats.
Intellectual Property: All intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, including but not limited to copyrights, trademarks, service marks, tradename rights, (un)registered design rights, copyrights, database rights, patents and patent applications, as well as all (enforcement) rights relating to domain names, trade secret rights, goodwill, know-how, computer software, source code and technical documentation, inventions, discoveries, specifications, developments, methods, algorithms and any other rights relating to any of the foregoing.
Data: All customized information which is made available by means of the feedback given by customers, questionnaires, default texts, messages to customers, follow up feedback, lists of users, reports, and evaluation, as well as all designs, logo’s, trademarks and tradenames that Customer requests to incorporate in the visual appearance of the Software.
Force Majeure Event: Means an event, or a series of related events, that is outside the easonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections and power failures).
Term: The Lease shall run for a period of 18 months commencing from the date of execution of the SLA.

2. USE OF SOFTWARE AND DURATION

2.1 CHIKA LIMITED gives the Customer during the Term of this Agreement the permission to make use of the Software under the terms in this Saas Agreement. This permission is non-exclusive and non-transferable.
2.2 Parties enter into this SaaS Agreement for the duration of 18 months. Please be referred to Clause 7 for the conditions on cancellation or termination of this Agreement.
2.3 The Customer will use the Software with the sole purpose of undertaking its ordinary course of business. In case the Customer would like to use the Software for other reasons, the Customer will be required to formally request a modification of the scope of use after obtaining written consent and approval from CHIKA LIMITED.
2.4 The Customer will get full access to the Software by means of the Internet obtained at the sole cost of the Customer.
2.5 The Customer, will not:
2.5.1 use the Software for any unlawful act;
2.5.2 create competing versions of the Software;
2.5.3 attempt to, directly or indirectly, (i) copy or republish the Software, (ii) make the Software subject to reverse engineering, (iii) lease, sub-license, encumber, lend, amend, merge into or with other software, decompile, disassemble, transfer, exchange, translate, hack, distribute or otherwise attempt to derive the source code, techniques, or other data or information comprising the Software or permit or induce the foregoing, or (iv) cause damage to or with the Software or in any other way abuse the Software.
2.6 In case CHIKA LIMITED has the reasonable suspicion that a user account of Customer has been used or is being used in violation of any user restriction provisions in this Clause or elsewhere in the SaaS Agreement, CHIKA LIMITED is allowed to immediately block such account or otherwise deny the Customer access to the Software in such manner as CHIKA LIMITED in its sole discretion deems appropriate. This does not affect the right of CHIKA LIMITED to attach other consequences mentioned in this SaaS Agreement or provided by law when the Customer is in violation of any user restriction provisions in this Chapter or elsewhere in the SaaS Agreement. The Customer acknowledges and agrees that CHIKA LIMITED will not be held liable in any manner for any loss or damages occasioned by it undertaking any action in accordance with this Clause.

3. OBLIGATIONS OF THE CUSTOMER

3.1 The Customer will provide CHIKA LIMITED with all the information and cooperation necessary for CHIKA LIMITED to perform the obligations under this SaaS Agreement. When the Customer does not provide the necessary information or cooperation, Customer acknowledges that this can lead to delay in performance on the side of CHIKA LIMITED or failure of CHIKA LIMITED to meet the obligations under the SaaS Agreement.
3.2 The Customer is solely responsible for the procurement, technical operation and maintenance of its internet connection, internal network, and all other systems that are relevant or necessary for undisturbed use of the Service.
3.3 The Customer undertakes that it shall comply with all Applicable Laws and it shall not and shall procure that none of its officers, agents, employees or other representatives upload any inappropriate or obscene content. The Customer also undertakes to notify CHIKA LIMITED of content of this nature. After this notification, CHIKA LIMITED will examine the content and reserves the right to remove it.

4. DATA, DATA PROCESSING AGREEMENT, ACCESS TO DATA

4.1 The Customer is the exclusive owner of all the Data that is collected, processed and stored by means of the Software, and is the exclusive owner of all rights and claims associated therewith.
4.2 Customer is fully responsible for the accuracy, reliability and quality of the Data and also carries the full responsibility that the collection, processing and storage of the Data is in compliance with all Applicable Laws. Customer acknowledges that it acts as the “Controller” regarding the collection, processing, editing and storage of the Data.
4.3 CHIKA LIMITED is not entitled to provide itself access to the Data unless it occurs at the express consent of Customer or in the event that CHIKA LIMITED is required to provide (access to) the Data by any Competent Authority.

5. FEE

5.1 As compensation for the use of the Software and the services CHIKA LIMITED will receive a monthly fee as agreed with Customer and payable in advance no later than the fifth (5th) day of each month (or as otherwise agreed with Customer in writing). All prices mentioned are net of any applicable taxes which costs shall be borne by Customer and paid to CHIKA LIMITED in addition to the agreed monthly fee.
5.2 Customer will pay the fee under 5.1 in 1 term by means of a bank transfer (pre-payment or automated online payment). The bank details for CHIKA LIMITED will be provided to the client via Email;.
5.3 Notwithstanding the provisions of clause 5.1 above, it is hereby agreed and acknowledged between the parties that CHIKA LIMITED shall be entitled to a monthly commission of 2.5% of the sales made in any specific month, in lieu of the agreed monthly fee, where the sales made by the Customer via the Software in a given month are equal to or more than K.Shs. 2,000,000.00 in value unless otherwise stated
5.4 If Customer fails to pay the agreed fees to CHIKA LIMITED in accordance with the applicable provisions, CHIKA LIMITED is entitled to deny Customer access to the Software, for example, by blocking user accounts provided to Customer or in such manner permissible by law or otherwise as CHIKA LIMITED in its sole discretion deems fit.
5.5 By giving at least [180] days’ notice, CHIKA LIMITED may modify and or increase the Fees as well as the scope of services provided from time to time (but not in the first Year) and shall not be liable to the Customer or any third party for any modification, price change, suspension or discontinuation of service.
5.6 If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on no less than [30] days’ notice, provided the notice is received by the Chika before the effective date of the Fee increase. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

6. COMMISSIONS & TRANSACTION FEES

Not applicable to customers with own/merchant provided gateway

6.1 It is agreed and understood that all Card billing shall be to an account maintained and operated by Chika Limited on behalf of the Customer.
6.2 CHIKA LIMITED in consideration for operating the same shall be entitled to a commission for all card transactions on the Customer’s website at the rate of 2.5% per transaction.
6.3 CHIKA LIMITED shall also be entitled to a fixed sum of Kshs 35 (or for transactions in any currency other than K.Shs, 0.40$) Per transaction.
6.4 The Customer shall bear the charges for settling the amounts to the Customer’s account.
6.5 CHIKA LIMITED will settle all customer funds within the timeline agreed between the parties or failing such agreement within the ordinary time required to settle such a funds and net of all charges (excluding the monthly agreed charge for using the platform)
6.6 Chika Limited will credit the customer account using detials provided by customer in the following format via Email

Account number …………………………… held at
Bank Name ……………………………………
Branch ………………………………….
Branch Code………………………..
Branch Address………………………….
Swift Code ………………………………..
Currency ………………………………………

OR Mpesa Till Number ……………… Paybill Number ……………………

OR at such other address or email as the Customer may hereafter specify for such purpose by notice in writing to CHIKA LIMITED

7. DURATION

7.1 This SaaS Agreement comes into effect on the dateof signature specified in the confirmation of order provided by the Customer (the “Start Date”) and shall continue for a period of 18 months (the “Initial Term”). During the Initial Term termination is not possible. After aforementioned Initial Term, the Agreement will continue for a further period of Eighteen (18) months, unless terminated as provided in clause 7.2.
7.2 Both parties shall be entitled to terminate this SaaS Agreement after the Initial Term has expired, during the subsequent Term, without liability, cost, or penalty on providing at least 30 days written notice to the other party, for any or no reason whatsoever.
7.3 If the SaaS Agreement is ended for any reason whatsoever under clause 7.2, CHIKA LIMITED will deny Customer access to the Software immediately after termination of the 30 days notice period and it shall not be liable to refund the Customer any amounts. However if there are any outstanding Fees owing by the customer, the Customer will receive one final invoice via email. Once that invoice has been paid in full, the Customer will not be charged again.
7.4 A Party may terminate this SaaS Agreement with immediate effect, without any notice being required and without being liable for any damages as a result of the termination, implying that CHIKA LIMITED is entitled to immediately deny Customer access to the Software, in case the other Party :
7.4.1 has been dissolved or liquidated, or is in dissolution or liquidation.
7.4.2 has been granted suspension of payments; or
7.4.3 has been declared bankrupt; or
7.4.4 any procedure analogous to the actions stipulated in clauses 7.4.1, 7.4.2 and 7.4.3 is initiated or otherwise effected against the Customer.
7.5 Chika Limited reserves the right to modify or terminate the Service or the Customer Account for any reason, without notice at any time.
7.6 FRAUD
Without limiting any other remedies, Chika Limited may suspend or terminate any Customer account with access to the Software if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.

8. INTELLECTUAL PROPERTY

8.1 CHIKA LIMITED is and remains the exclusive owner of all the current and future Intellectual Property Rights and other propriety rights vesting in and relating to the Software including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property Rights in connection with the Software.
8.2 CHIKA LIMITED is and remains the exclusive owner of all domains, unless otherwise agreed between the parties.
8.3 Customer acknowledges that, under this SaaS Agreement, it will only be allowed to use the Software and will not and shall not make any claims to the before mentioned Intellectual Property Rights

9. BETA SERVICES

From time to time, Chika Limited may, in its sole discretion, invite Customer to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Chika Limited will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered confidential information of CHIKA LIMITED (Chika Limited Confidential Information) and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without Chika Limited’s prior written consent. Chika makes no representations or warranties that the Beta Services will function. Chika Limited may discontinue the Beta Services at any time in its sole discretion. Chika Limited will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Chika Limited may change or not release a final or commercial version of a Beta Service in our sole discretion.

10. DCMA NOTICE AND TAKEDOWN PROCEDURE

Chika Limited supports the protection of intellectual property and asks Chika Limited merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Chika Limited’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. For more information, see our DMCA Notice and Takedown Procedure.

11. DCMA NOTICE AND TAKEDOWN PROCEDURE

During the course of your use of the Services, you may receive information relating to us, or to the Services, that is not known to the general public including information related to our security program and practices (“Chika Limited Confidential Information”). You agree that:
(a) Chika Limited Confidential Information will remain Chika Limited’s exclusive property;
(b) you will use Chika Limited Confidential Information only as is reasonably necessary for your use of or participation in the Services;
(c) you will not otherwise disclose Chika Limited Confidential Information to any third party, except that you may disclose to your affiliates, employees, subcontractors and agents who, in each case, are subject to confidentiality obligations at least as protective of the Chika Limited Confidential Information as those contained in these Terms of Service; and
(d) you will take all reasonable measures to protect the Chika Limited Confidential Information against any use or disclosure that is not expressly permitted in these Terms of Service.
WHICH MEANS
If you receive Chika Limited Confidential Information you are required to protect it.

12. INDEMNIFICATION

12.1 Customer indemnifies CHIKA LIMITED for all third-party claims that relate to (the content of) the Data that Customer collects, distributes or processes by means of the Software, including at least the personal data that has been collected and processed by means of the Software.

13. LIABILITY

13.1 CHIKA LIMITED represents and warrants to Customer and acknowledges Customer is relying thereon, that the Software will perform as stipulated.
13.2 Although the Service has been designed with the greatest care, CHIKA LIMITED does not guarantee that the Software will work perfectly and/or without omissions in all circumstances. Customer further acknowledges that the Software is provided over the internet, as well as by means of personal devices and/or technical infrastructure of Customer, and thus the quality and availability of the Software may be affected by factors outside CHIKA LIMITED’s reasonable control.
13.3 CHIKA LIMITED is not liable for any damage caused by unprofessional use of the Software by Customer, e.g. wrong instructions.
13.4 Customer is solely responsible for the content that is uploaded using the Software. CHIKA LIMITED is not responsible nor liable for any inappropriate or obscene content uploaded by the Customer.
13.5 CHIKA LIMITED is not liable for the incorrectness or incompleteness of the processed Data as mentioned in Clause 4.1 and is not liable for the application thereof.
13.6 CHIKA LIMITED shall not be liable for any losses attributable to any government action, including actions by the Communications Authority of Kenya (CA) or The Kenya Network Information Centre (KENIC) or the respective domain governing authority in the deletion, non-renewal, suspension, purging, non-registration or the disablement otherwise of the domain on which the Customer’s website is hosted.
13.7 CHIKA LIMITED is not liable for the Data provided by Customer in relation to the Service.
13.8 If and in so far as Customer is to blame for failing to observe any of its duties, or is in breach of any if its representations and warranties provided in this SaaS Agreement, Customer is liable to CHIKA LIMITED for compensation for loss suffered or to be suffered by CHIKA LIMITED.
13.9 If a Force Majeure Event gives rise to failure or delay in either party performing any obligation under this SaaS Agreement, the Party whose performance of its obligations under the SaaS Agreement is affected by the Force Majeure Event will promptly notify the other Party. CHIKA LIMITED will be authorized to suspend its services fully for the duration of the Force Majeure Event. In case of suspension of services by CHIKA LIMITED attributable to a Force Majeure Event, CHIKA LIMITED will never be liable for any damages of Customer nor will CHIKA LIMITED be obliged to repay Customer a proportional part of the Fee. CHIKA LIMITED will resume its services as soon as possible.
13.10 If and in so far as CHIKA LIMITED is to blame for failing to observe any of its duties or is in breach of any of its representations and warranties provided in this SaaS Agreement, CHIKA LIMITED is only liable for the direct loss, whereby the maximum compensation for which CHIKA LIMITED may be held liable cannot exceed the value of the fees (excluding applicable taxes and other public authority charges) that Customer has actually paid and that CHIKA LIMITED has received for the acquisition of the right to use the Software.
13.11 CHIKA LIMITED will not be liable for any indirect arising to the Customer.
13.12 Any right from Customer to claim damages ceases when the Customer has not taken the measures necessary to mitigate the damage or to prevent further and/or other damage. This right will also cease if the Customer did not inform CHIKA LIMITED within 30 calendar days after noticing the damage and all relevant information thereto.
13.13 In the event that CHIKA LIMITED is held liable for any breach under this Agreement it is hereby agreed that the liability of CHIKA LIMITED will not exceed the fees paid by Customer under this Agreement during the 12 months preceding the date upon which the related claim arose.

14. CONFIDENTIALITY

14.1 The Parties are obliged to observe strict confidentiality concerning all confidential information with which the Parties or persons whose services they use in the fulfilment of this Agreement come into contact. Information is considered confidential if designated as confidential by the other Party or if confidentiality results from the nature of the information. In any event, confidential information includes “personal information” and all materials, documents, ideas, data or other information that concerns the research and development, company secrets or company information of the other Party.
14.2 The Parties and any person controlled by it may disclose information which would otherwise be confidential if and to the extent:
14.2.1 is or has become publicly known other than through breach of this Clause;
14.2.2 was in possession of the receiving party prior to disclosure by the other party; or
14.2.3 was received by the receiving party from an independent third party who has full right of disclosure; or
14.2.4 was independently developed by the receiving party; or
14.2.5 was required to be disclosed by a Competent Authority, stock exchange or regulatory body, provided that the Party subject to such requirement to disclose gives the other Party prompt written notice of the requirement.

14.3 The termination of this Agreement for whatever reason shall not affect the provisions of this section 14 which shall survive in the event of the termination of this Agreement.

15. MISCELLANEOUS

15.1 If any provision of this Agreement shall be held by any court of competent jurisdiction to be invalid or unenforceable;
(i) the invalidity or unenforceability of such provision shall have no effect upon and shall not impair the validity and enforceability of any other provision of this Agreement; and
(ii) Parties shall reach agreement on the replacement of the invalid and/or unenforceable provision by a valid and enforceable provision that complies – as much as possible – with the objectives of the Parties as expressed in this Agreement.
15.2 This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assignees.
15.3 No Party hereto may assign this Agreement or any part hereof without the prior written consent of the other Party hereto. Subject to the foregoing, this Agreement shall endure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns, as applicable.
15.4 No variation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

16. GOVERNING LAW AND JURISDICTION

16.1 This Agreement shall only be governed by and construed in accordance with the laws of the Kenya.
16.2 All disputes arising out of or in connection with this Agreement, including disputes concerning the existence and validity thereof, shall be exclusively submitted to the competent court in Kenya.

Availability: The service provider agrees to make reasonable efforts to ensure the availability of the service. The service will be available for at least 99.9% of the time during any calendar month, excluding scheduled maintenance windows.
Performance: The service provider agrees to deliver the service with reasonable performance levels, such as minimum response times and maximum acceptable downtime.
Support: The service provider will provide technical support and assistance to the customer during the agreed-upon support hours. The support response time during normal working hours will not exceed 650 minutes, and during non-working hours, including weekends and public holidays, it will not exceed 2310 minutes.
Problem Resolution: The service provider will use reasonable efforts to promptly resolve any issues or problems related to the service, based on their severity level

Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures on contract form that will be shared by CHIKA LIMITED via Email.

If you have questions or comments about this agreement, contact us using the information provided on this website