by using SaapCRM you agree to the following terms and conditions
A. These terms and conditions contain all and every Agreement(s) between TrendPro Systems Limited “the Company” and the Client. By subscribing to each and every of the service(s) the Client confirms their unreserved acceptance of these terms and conditions, their intention to enter into a legal relationship with the Company, and that these terms and conditions shall constitute the Agreement between the Company and the Client (together the Parties) for all intents and purposes including for purposes of outlining the relationship between the Parties, the services on offer, and resolution of any disputes related to these services.
1.1 The following terms and their respective definitions will be used in the course of this Agreement:
1.1.1 “Account” means an account enabling a person to access and use the subscribed services and includes all types of accounts such as the administrator and user accounts.
1.1.2 “Agreement” means this Agreement together with its recitals and the Annexures.
1.1.3 “Breach” means any default of the obligations, non-performance, non-conformance and non-delivery of either party to this Agreement
1.1.4 “Business Day” means a day other than a Sunday or public Holiday in Kenya.
1.1.5 “Calendar” means Gregorian calendar.
1.1.6 “Client data” means all data, works and materials uploaded to or stored on the platform by the Client and/or supplied by the Client for purposes and achieving the intended uses of the subscribed services.
1.1.7 “Data Protection Laws” means all applicable laws relating to the processing and management of personal data within the Republic of Kenya and does not mandatorily include the General Data Protection Regulation (EU 2016/679).
1.1.8 “Fee” means the price the Client agreed to pay to the Provider in return for access to the subscribed services.
1.1.9 “Force Majeure” means any cause affecting the performance by a Party of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its reasonable control, including acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster.
1.1.10 “Law” means all laws (including any guidance issued under statutory authority and all applicable regulations), rules, directives, judgments, decrees, injunctions, executive orders, notifications and interpretations and any other public documents having force of law in the Republic of Kenya.
1.1.11 “Material breach” means an act of breaking or failing to observe a law, agreement, or code of conduct which leads to termination of the Agreement at the option of the aggrieved party.
1.1.12 “Novation” means the act of replacing one participating Party of an Agreement with another.
1.1.13 “Subscription Date” means the date of purchase of the subscription and acceptance of the terms and conditions contained in this Agreement.
1.2 In this Agreement, unless the context requires otherwise, any reference to:
1.2.1 A clause or an annexure is a reference to a clause of, or annexure to, this Agreement.
1.2.2 A paragraph is to a paragraph of the relevant annexure.
1.2.3 A person includes a natural person, a corporate or unincorporated body (whether or not having a separate legal personality). 1.2.4 One gender includes a reference to the other gender.
1.2.5 A particular statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it.
1.2.5 ‘Writing’ or ‘written’ includes faxes and e-mail.
1.2.6 A document is a reference to the document whether in paper or electronic form.
1.3 Clause, annexure and paragraph headings do not affect the interpretation of this Agreement.
1.4 Where the words ‘include(s)’, ‘including’ or ‘in particular’ are used in this Agreement, they are deemed to have the words "without limitation" following them.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.7 Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any annexure
or other document, the provision in the body of this Agreement shall take precedence.
1.9 Each party acknowledges that he was provided with a copy of this Agreement prior to its execution; that he has had a full and fair opportunity to review this Agreement; that he has had a full and fair opportunity to comment upon this Agreement and to request to have corrections and changes made, and that those corrections and changes have been made; that he was given the opportunity to consult with and retain counsel of his own choosing prior to executing this Agreement.
2.1 The subscription services is as particularized in the Order Receipt, which forms part of this Agreement.
3.1 Each Party warrants that it has the power to execute, deliver and perform its obligations under this Agreement and all necessary
corporate and other action has been taken to authorize that execution, delivery and performance.
3.2 Each Party warrants that it has obtained from all relevant government authorities all licenses, permissions and consents required in order for it to perform all of its obligations under this Agreement.
3.3 It has the facilities, information technology, capability, experience, management expertise, financial resources, equipment, employees and other facilities necessary to perform its obligations under this Agreement.
3.4 The Provider warrants that it shall use all reasonable and best efforts consistent with prevailing industry standards to maintain the services with minimal to no errors and or interruptions in the subscription service provision and that the services shall run in a professional and workmanlike manner provided that where the Provider has information that the service provision will be interrupted or distorted, they shall take all necessary efforts to inform the Client either in advance or immediately such information is known to them.
4.1 This Agreement shall come into effect from the Subscription Date and shall remain in force until the lapse of the subscription agreement.
4.2 Notwithstanding the provision of clause 4.1 (above) the Parties agree that due to the nature of subscription services and the prevailing circumstances, the Provider shall have the exclusive right to provide the services on a continuous basis or otherwise terminate the subscription services provided that the Provider shall afford the Client reasonable notice on the duration of services and availability or unavailability during the subsistence of the Agreement
5.1 The Client shall pay the Provider a subscription fees, which fees shall be pegged on the number and type of accounts the
Client subscribes to provided that such subscription shall be itemized in written form through documentation availed by the Provider.
5.2 It is understood that the subscription fees contemplated under paragraph 5.1 above does not include other services fees paid to third parties which shall be itemized, communicated and charged separately.
5.3 The Client shall pay the subscription fees through the payment modes directed by the Provider and that the subscription fees shall be paid in advance of offering the subscription services on an agreed period of time and where not particularly stated the agreed period of time shall be one month.
6.1 The Intellectual Property Rights in the Software are, and shall remain, the property of the Provider provided that the Client may have residual Intellectual Property rights for their un-anonymized data and information informing part of the Client’s confidential information.
7.1 This Agreement shall terminate automatically by lapse of the subscription period, and a subscription renewal shall constitute
a separate and independent Agreement.
7.2 During the subscription period, the Provider shall reserve the right to terminate the Client’s subscription where the Provider has reasonable grounds that the Client has committed material breaches to the terms and conditions in this Agreement and that such termination shall not accrue the Client any refunds or reimbursements of whatever nature or form.
7.3 The Provider shall not refund, reimburse, and/or compensate the Client, where the latter opts for whatever reason to terminate the subscription service before lapse of the subscription period.
8.1 The Client shall not (without the consent of the Provider) assign the whole or any part of this Agreement or any benefit or interest
in it including all and any of the subscribed accounts to:
8.1.1 Any of its affiliate(s);
8.1.2 Any third party.
8.2 The Client shall not transfer or assign any of the accounts without the prior approval and consent of the Provider provided such consent shall not be unnecessarily withheld.
9.1 The Provider undertakes to put best efforts to ensure the proper management of the Client data, information and any proprietary
sourced data within the stipulated data protection laws of Kenya.
9.2 The Provider retains intellectual property rights and otherwise proprietary values in the system and that the provision of access to the system by the Client shall not in any way amount to the transfer of intellectual property rights and other proprietary rights rightfully belonging to the Provider.
9.3 The Provider reserves the exclusive right to exploit, use and otherwise manage, store and develop any and every anonymized data, whether collectively or singly sourced from the Client together with other clients’ information provided that such use shall not violate any confidentiality and data privacy rights ordinarily resident with the Client. To this end, all data used by the Provider under this clause shall be anonymized to remove any personal identification and relation with the Client.
9.4 Neither Party shall disclose, divulge, make public or make any use of, for whatever purpose or reason, any information or knowledge which may be confidential or become known to them regarding the business or other affairs of the other party.
9.5 Both parties are bound to this obligation both during and after the expiry or termination of the Agreement. This obligation shall apply without limitation unless and until such information becomes public knowledge through no fault of either party.
9.6 The Client shall ensure the passwords and other access and verification information is properly secured and shall hold the Provider harmless from any losses and damages that is directly attributable to the mismanagement and negligent handling of such access and verification information, also considered to form part of the Confidential Information.
9.7 The Provider reserves the right but has no obligation to maintain the Client data for a maximum period of five years after the termination of this Agreement.
If any provision in this Agreement is found by any court, tribunal or administrative or regulatory body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the terms and conditions and the remainder of such provision shall continue in full force and effect.
11.1 This Agreement is governed by and construed in accordance with the laws of Kenya.
11.2 If at any time during the term of this Agreement, there is a change to the Laws, legislation or regulations or interpretation thereof and such a change has a material impact on the manner and/or cost of the provision of the Software Development Services, then the Fee may be varied in accordance with that impact subject to the written approval of both parties. At all times, the new Fee will apply from the date the change in Law takes effect.
11.3 All dates shall be in accordance with the calendar.
11.4 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, breach, validity or termination, shall be settled amicably through negotiation within 15 days from the date of the occurrence of the said dispute, failure to which it shall be referred to arbitration in accordance with the provisions of the Arbitration Act (1995), of the Laws of Kenya or any statutory modification or re-enactment thereof for the time being in force. Arbitral Proceedings shall be held in Nairobi and the determination of such dispute or disputes shall be by a single Arbitrator appointed jointly by the Parties and failing agreement, by the Chairman of the Chartered Institute of Arbitrators, Kenya Chapter. The award of the Arbitrator so appointed shall be final and binding on the Parties. The Arbitration proceedings shall be in the English language.
11.5 Neither the existence of any dispute shall relieve either Party to the dispute from its obligation to continue to observe and perform each and every term, condition and provision of this Agreement on its part to be so observed or performed.
11.6 For disputes and complaints arising within the context of the delivery of the Services, a complaints mechanism shall be established for purposes of resolution. The Client shall deliver an official complaint in writing to the Provider within 48 hours of the happening of the default giving full particulars. The Client shall then afford the Provider 5 working days to resolve the complaint(s) to the satisfaction of the Client failure to which shall entitle the Client to declare a material breach leading to the termination of this Agreement.
11.7 On the receipt of a complaint, either party shall have 5 working days to address the concerns of the other party, and that failure to address complaint to the satisfaction of the complaining party may lead to the termination of this Agreement at the option of the offended party and that the offended party shall reserve the rights to pursue damages and other remedies available under the laws of Kenya.
No failure or delay by either Party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver of that right or remedy, nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy. No waiver by either party of any breach of this Agreement shall be considered as a waiver of a preceding or subsequent breach. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by Law.
13.1 Any notice required to be given by a Party shall be in writing and shall be deemed effective on delivery, or:
13.1.1 All notices given in accordance with these conditions and all communications between the Parties shall be in the English Language
13.1.2 Any notice shall be sufficiently served if it is sent by office email.
13.1.2 A notice sent by email shall be deemed to be delivered when the email arrives and a delivery notification shown on the sender’s email.
No provision of this Agreement is intended to or does confer upon any third party any implied benefit or right enforceable at the option of the third party against either party.
The official language of communication of this Agreement shall be English.
16.1 Neither party shall be in breach of any obligation under this Agreement if it is unable to perform that obligation in
whole or in part by reason of Force Majeure.
16.2 If either Party seeks to rely on this clause, it shall immediately give notice to the other with full particulars of the act or matter claimed as a Force Majeure event. The Parties so affected shall take all reasonable steps to remedy the failure to perform and to keep the other Party informed of the steps being taken to mitigate the effects of the Force Majeure. The Client may issue instructions to the Provider in respect of such Force Majeure.
16.3 If an event of Force Majeure lasts for an excess of thirty (30) days, either Party may, following consultation with the other, give a notice of termination in accordance with provisions of this Agreement.
17.1 The Client shall indemnify, defend and hold harmless the Provider from any and all third party claims, actions, losses,
damages, costs and expenses, including reasonable attorney’s fees, arising from its provision of the Services,
provided that the Provider shall not obtain any indemnification for any of its negligent action.
17.2 The Provider shall not be liable for any damage and or losses occasioned by cases of data mismanagement or mishandling or hacking that are directly attributable to the negligent action(s) of the Client or any third party provided that the Provider shall take all reasonable steps and best efforts to secure the system from any unauthorized access and potential hacking occurrences.
18.1 Both parties undertake to provide the other Party with such information as the other Party may reasonably request to enable it to carry out its duties. Any information specifically relating to the Agreement, that the other Party amasses during the subsistence of this Agreement, will remain the property of the Party to whom the information was obtained from.