These Terms of Service (Agreement) set out the legally-binding terms and conditions for your use of the Services. This Agreement is effective on date December 01,2020 for all Clients.
To be eligible to register for a Netpap Global Limited account in order to use the Services, or to continue using the Services, you must review and accept this Agreement by clicking on the “I Accept” button or other mechanism provided.
BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES IT REFERS TO. ONCE ACCEPTED, THIS AGREEMENT SHALL CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US AND SHALL SUPERSEDE ANY EXISTING AGREEMENT YOU MAY HAVE WITH US EXCEPT WHERE OTHERWISE COMMUNICATED. PLEASE BE AWARE THAT BY CONTINUING TO USE OUR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES.
In this Agreement, we, us, our, Netpap or Netpap global will refer collectively to Netpap Global Limited and its subsidiaries/affiliates existing from time to time and the terms you, your and Client will refer to you. If you are registering for an account in order to use the Services on behalf of an organization, then you are entering into this Agreement on behalf of that organization and represent and warrant that you have the authority to bind that organization to this Agreement (and, in which case, the terms you, your and Client will refer to that organization). Netpap Global Limited and the Client are each referred to in this Agreement as a Party and collectively as the Parties.
In this Agreement, unless otherwise specified, the following words shall have the meanings next to them:
- Affiliate means in relation to a Party, any other body corporate directly or indirectly, Controlling, Controlled by, or is under common Control with, such Party and Affiliates shall be construed accordingly;
- Control means, in relation to a body corporate, the power or ability of a person to secure that the affairs of the body corporate are conducted directly or indirectly in accordance with the wishes of that person: (1) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (2) by virtue of any powers conferred by the articles of association, or any other document, regulating that or any other body corporate, and Controlling and Controlled shall be construed accordingly;
- Disclosing Party means a Party that discloses Confidential Information;
- Force Majeure Event means any happening or event which is beyond the reasonable control of a Party and which negatively affects a Party’s performance of its obligations or makes such performance impossible or so impracticable as to be considered impossible in the circumstances including acts of God, riots, war, armed conflict, civil strife, acts of terrorism, acts of government, the Regulator or other regulators, fire, power outages, material adverse weather conditions including flood, storm or earthquake, or disaster, geographical topography, or the unexpected refusal, or inability or delay by a third party to supply goods or services to a Party;
- Intellectual Property means any and all patents, trademarks, copyrights, inventions, Works, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information, know-how, trade secrets, discoveries, creations, inventions or improvements upon or additions to an invention, moral rights, any research effort relating to any of the above and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
- Network Provider mean a network provider in a country where Netpap Global operates in and Network Providers shall be construed accordingly;
- Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- Person includes a natural person, body corporate, unincorporated venture, trust, joint venture, association, statutory corporation, state, state agency, governmental authority or firm;
- Receiving Party means a Party that receives Confidential Information;
- Regulator means the relevant regulatory authority in a country Netpap operates in that governs telecommunications or payments;
- Representatives means a Party’s directors, officers, employees or agents;
- Site means Netpap’s website being https://www.netpap.co.ke ; https://stage.netpap.co.ke or https://m.netpap.co.ke
Netpap Global Limited is a service company which provides WISP and Base Controller services through its Platforms (the Services). This Agreement governs the Parties’ respective obligations regarding all Services provided to or used by you. Netpap may update this Agreement from time to time. If we do, the updated Agreement will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of this Agreement. We will provide you advance notice of any material revisions to the email address linked to your User Account. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.
This Agreement incorporates the following additional terms, policies and agreements:
Netpap grants you a limited, revocable, personal, non-exclusive, non- transferable, non-sub licensable licence until this Agreement is terminated to use its platform. This licence shall extend to your Affiliates, provided that such Affiliates are acting via your User Account and provided further that you remain jointly and severally liable for all acts and omissions of your Affiliates.
- Access and Security
To access and use the Services, you must create a User Account. The User Account shall be solely accessible using a username and password set by you. We shall work together with you on the integration between your platform(in cases where it exists) and our Platform for the purpose of this Agreement.
- 4. Fees and Payment
Unless otherwise agreed upon by both Parties in writing, the fees payable to Netpap Global shall be as set out herein. We shall further charge you any additional penalty you incur as a result of violation of this agreement.
- For Hotspots
Fees payable are as follows, an installation fee of Kshs. 10,000/=. The client shall further pay a fee of either 5% of the transaction fee collected by the client
- For a Base Station Controller/PPPOE SERVER CONTROLLER/Fixed broadband management
Fees payable are as follows,
|Active Users||Installation||Per month|
- For clients charged a percentage of the transaction fee, they shall not be charged any fee for any queries or issues requiring maintenance or support.
Invoices in respect of any invoiceable payments shall be sent to the e-mail address specified by you, and shall be deemed received on the date sent. The client is expected to pay the sum billed within 2 weeks from the date the email is sent. The same shall be specified in the invoice. Upon failure to pay the sum within the specified period, Netpap will further issue a notice to the client to pay the sum. Further failure to pay the sum shall attract a penalty of 1% per month on the sum due payable from the due date until the invoice is settled. If you fail to pay any sum due within sixty (60) days of the due date indicated in such invoice, Netpap may suspend all or part of the Services until payment has been made in full. Netpap shall immediately without undue delay or any additional requests from you reactivate any Services once it has received full payment from you. For any enquiries or issues please contact us through email@example.com.Failure to make payment within the 60 days will force Netpap to take legal action against the defaulting company.
All fees payable to Netpap shall be:
exclusive of VAT (unless otherwise stated); and
paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as may be required by law).
- · In this Agreement, Confidential Information means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include information which is already known to the receiving Party at the time of disclosure by the Disclosing Party; is or becomes publicly known through no wrongful act of the Receiving Party; is independently developed by the Receiving Party without benefit of the Disclosing Party’s Confidential Information; or is received by the Receiving Party from a third party without restriction and without a breach of an obligation of confidentiality.
- Each Party hereby agrees that if either Party provides Confidential Information to the other Party, such Confidential Information shall be held in the strictest of confidence and the receiving Party shall afford such Confidential Information the same care and protection as it affords generally to its own confidential and proprietary information (which in any case shall not be less than reasonable care) to avoid disclosure to or unauthorized use by any third party.
- The receiving Party may disclose confidential Information to the minimum extent required by
- Any applicable order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body or
- the applicable laws or regulations of any country or governmental authority with jurisdiction over the affairs of the receiving Party, provided, however, before the receiving Party discloses any information under this clause, the receiving Party shall (to the extent permitted by law) use all reasonable endeavors to:
- inform the disclosing Party of the full circumstances and the information that will be disclosed;
- take all such steps as are reasonable and practicable in the circumstances to agree the contents of such disclosure with the disclosing Party before making the disclosure;
- consult with the disclosing Party as to possible steps to avoid or limit disclosure; and
- co-operate with the disclosing Party should the disclosing Party elect to contest or seek further assurances with respect to the obligation to make a disclosure pursuant to this clause.
- · We shall ensure that the collection, handling, storage, processing and disposal and any other use (collectively Processing) of Personal Data is done in compliance with all applicable data, privacy and cyber security laws and that Personal Data that is accessed or collected during the performance or utilization of the Services is kept secure and we shall use appropriate technological, organizational and security practices and systems in respect of the Personal Data to comply with legal and regulatory requirements including data protection requirements. We shall take prompt remedial action against any unauthorised use, storage, reproduction or redistribution of the Personal Data and shall immediately notify you of any Personal Data breaches and no later than seventy two (72) hours after it has become aware of the breach. Netpap shall keep records of Personal Data breaches, indicating the relevant facts, their effects and the remedial actions taken.
- Intellectual Property
- · Each Party shall retain its Intellectual Property whether registered or not, used by or related to either Party. All data stored on behalf of the company,solely by the subscirbing company.All legal and beneficial rights the Intellectual Property which Netpap provides to you for the purpose of using the Services will remain at all times the property of Netpap or its owner or licensor. To the extent that it is so entitled, Netpap grants you a non-exclusive, non-transferable licence to use such Intellectual Property for the sole purpose of using the Services as contemplated under this Agreement.
- If you provide any feedback to Netpap the Site or Services, you hereby assign to Netpap all right, title, and interest in and to the feedback, and Netpap is free to use the feedback without payment or restriction.
- Inactivity, Term and Termination
- · Inactivity
If a client’s account remains inactive for a period of 1 months the account shall be deemed inactive by us and shall be shut down.Any payments thats shall not be paid as at the date of declaring inactive must be paid with immediate effect.. In the event the client wishes to reactivate the account, the client shall email firstname.lastname@example.org for reactivation of the account at no fee charged.
Unless otherwise specified, this Agreement, as may be updated from time to time, will commence on the date it is accepted by you and shall continue unless terminated in accordance with this agreement.Continued use of the netpap platform will be construed as an agreement to the terms of this document.
- · Termination for breach by either Party
Either Party shall be entitled to terminate this Agreement in the event that: (i) the other Party;
- i. commits a breach of any of its material obligations herein and fails to remedy such breach within thirty (30) Days after delivery of written notice thereof from the non-defaulting Party;
- if it repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
- the other Party becomes insolvent.
- · Termination by Netpap
Netpap shall be entitled to terminate the Agreement with immediate effect by serving written notice to you
- if you breach the Code of Conduct or
- where Netpap has been instructed to cease providing the Services by a Regulator or by any other competent authority, or if an agreement between Netpap and a Network Provider integral to the provision of the Services is terminated.
- · Termination for convenience
A Party may terminate this Agreement without cause by serving thirty (30) days’ written notice of termination on the other Party.
- 8. Consequences of termination of the Agreement
Netpap shall deactivate the Services immediately upon expiry of the notice period provided in the notice of termination issued by either Party or immediately on receipt of a notice of termination from either Party where no period has been provided (the Effective Termination Date).
The termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Effective Termination Date, including the right to claim damages in respect of any breach of the Agreement which existed at or before the Effective Termination Date.
Upon termination of this Agreement, any amounts payable which have not been paid shall be paid in full by you within thirty (30) days of the Effective Termination Date.
- 9. Indemnification
Subject to the limitations in clause 10, each Party (the Indemnifying Party) hereby agrees to indemnify, defend, protect and hold harmless the other Party (the Indemnified Party) and its Affiliates, from and against, and to assume liability for any loss, damage, expense or cost arising out of or in connection with:
- an infringement by the Indemnifying Party of a third party’s Intellectual Property
- any violation by the Indemnifying Party of any applicable law or governmental regulation; and
- any material breach by the Indemnifying Party of its obligations under this Agreement. You further agree to indemnify Netpap against any claims of whatever nature by third parties arising from or due to your use of the Services.
Nothing in this Agreement excludes or is intended to exclude either party’s liability for fraud caused by the actions or omissions of such Party or its Representatives
- Limitation of Liability
Except as provided in clause 9, in no event shall either Party be liable to the other Party for any consequential, special or indirect losses or damage sustained by either party or any third parties in using the Services, howsoever arising whether under contract, tort or otherwise (including, without limitation, third party claims, loss of business or profit, loss of, customers, loss of data or information, cost of substitute performance, or damage to reputation or goodwill) even if it has been advised of the possibility of such damages.
You hereby authorize Netpap to send notices to you relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address you provide to us, and if no email has been provided, to the email address linked to your User Account. It is your responsibility to keep your email address current, and you will be deemed to have received any email sent to the last known email address Netpap has on record for you. Notices that Netpap sends to you via email will be deemed effective upon the sending of the email. Notices provided to Netpap under this Agreement shall be sent to the attention of info@Netpap.co.ke.
In the event there is a downtime, server crash or any other material effect that may affect services provided by us, notice shall be issued within one (1) day.
No variation, amendment or any alteration to any of the terms and conditions of this Agreement shall be of any force or effect unless they have been reduced to writing and have been duly signed by the Parties. The Parties agree that no other terms or conditions, whether oral or written, and whether express or implied, apply to this Agreement.
No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same, and any such waiver will be effective only in a specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege.
If any term of this Agreement is to any extent illegal, otherwise invalid or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms shall remain in full force and effect; and to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
Neither Party shall assign any or all of its rights and obligations under this Agreement without the prior written consent of the other Party.
- Force Majeure
Provided it has complied with notice requirements under this clause, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
The corresponding obligations of the other Party will be suspended, and it’s time for performance of such obligations extended, to the same extent as those of the Affected Party.
The Affected Party shall:
- As soon as reasonably practicable after the start of the Force Majeure Event but no later than ten (14) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
- Use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations.
- If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than two (2) months, the Party not affected by the Force Majeure Event may terminate this Agreement by giving thirty (30) days written notice to the Affected Party.
- Governing Law and Dispute Resolution
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with the laws of Kenya.
- Amicable Settlement
The Parties shall use their best efforts to settle amicably any dispute arising from or in connection with this Agreement through good faith negotiations between the senior officers of the Parties. The Party seeking resolution of a dispute will first give notice in writing to the other Party, setting forth the nature of the dispute and a concise statement of the issues to be resolved.
- 19. Arbitration
If the dispute has not been settled amicably within thirty (30) days (or such longer period as may be agreed upon between the Parties) from when the dispute resolution process was instituted, a Party may elect to refer the dispute to arbitration for final resolution under the arbitration act of kenya