END USER LICENSE AGREEMENT FOR SOLUTECH SERVICES

1. DEFINITIONS

1.1 “Licensee” means the end user who is further identified in this document as “End User”.

1.2 “Solutech Limited” is a Limited Liability Company registered under the Companies Act of 2015 in Kenya that provides professional IT services specializing in Sales Force Automation.

1.3 “Solutech Services ” means the solutions and innovations that are provided by Solutech Limited in this context includes (Solutech SAT, Solutech CRM, KaziTime and Kodie.) 

1.4 “EULA Acceptance Form” means the “Acceptance Form for End User License Agreement (for Solutech Services)” concluded between Solutech Limited and Licensee.

1.5 “Effective Date” means the effective date set out in the Business Proposal document as “Effective Date”. 

1.6 “Software Use Rights Schedule” means the Software Use Rights Schedule currently at the Effective Date of the EULA Acceptance Form which is made available on the Company Website.

1.7 “Agreement” means the EULA Acceptance Form, this EULA and the Software Use Rights Schedule.

1.8 “Software” means:

1. Any and all software products licensed to Licensee under this Agreement as specified in the EULA Acceptance Form, all as developed and delivered by Solutech Limited to Licensee;
2. Any new versions, releases, updates, upgrades, patches, fixes and corrections thereof, made available through unrestricted shipment pursuant to Solutech support or warranty obligation.
3. Any complete or partial copies or replacements of any of the foregoing. 

1.9 “Add-on” means any development that adds new and independent functionality, but does not modify existing functionality of any of Solutech’s services, and is developed using Solutech Limited’s application programming interfaces or other code belonging to Solutech Limited that allows other software products to communicate with or call on the Software. 

1.10 “Business Partner” means a legal entity or individual that requires access to the Software in connection with Licensee’s internal business operations, such as customers and/or suppliers of Licensee. 

1.11 “Documentation” means Solutech services then-current technical and/or functional documentation which is delivered or made available by Solutech Limited directly to Licensee with the Software.

1.12 “Solutech Materials” means any software, programs, tools, systems, data or other materials made available to Licensee directly by Solutech prior to or after the Effective Date including, but not limited to, the Software and Documentation. 

1.13 “Confidential Information” means, with respect to Licensee: Licensee’s business plans and/or financial information, and with respect to :

1. The Software, Documentation and other Solutech Materials, including without limitation the following information regarding the Software:
   1. Computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Software.
   2. Benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats.
   3. Discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Software.
2. The research and development or investigations of Solutech Limited.
3. Product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. In addition, Confidential Information of either Solutech Limited or Licensee (the party disclosing such information being the “Disclosing Party”) includes information which the Disclosing Party protects against unrestricted disclosure to others that: 
   1. The Disclosing Party or its representatives identifies as confidential at the time of disclosure.
   2. Should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure; including, without limitation, information from, about or concerning any third party that is disclosed under this Agreement.

1.14 “Export Law” means all constitutions, laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits restrictive measures, trade sanctions, embargoes and other legally binding requirements of all federal, country, international, state and local governmental authorities relating to export, re-export or import. 

1.15 “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

1.16 “Modification” means

1. A change to the delivered source code or metadata.
2. Any development, other than a change to the delivered source code or metadata, that customizes, enhances, or changes existing functionality of the Software including, but not limited to, the creation of any new application program interfaces, alternative user interfaces or the extension of data structures native to Solutech’s services.
3. Any other change to the Software utilizing or incorporating any Solutech Materials. 

1.17 “Territory” means the territory stated in the EULA Acceptance Form. 

1.18 “Use” means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities. 

2. LICENSE GRANT

2.1 License

2.1.1 Subject to Licensee’s compliance with all the terms and conditions of this Agreement, Solutech Limited grants to Licensee a nonexclusive, non-transferable, perpetual license to Use the Software, Documentation, and other Solutech Materials at specified site(s) within the Territory to run Licensee’s internal business operations (including customer back-up and passive disaster recovery) and to provide internal training and testing for such internal business operations, unless terminated in accordance with the terms of this Agreement. Licensee must not make Modifications and/or Add-ons to the Software in furtherance of its permitted Use under this Agreement, and shall not be permitted to use Modifications and Add-ons that have not been designed or consented to by Solutech Limited without written consent with the Software. Licensee shall not:

1. Lease, loan, resell, sublicense or otherwise distribute Solutech Materials. 
2. Make any Use of or perform any acts with respect to Solutech Materials other than as expressly permitted in accordance with the terms of this Agreement.
3. Use Software components other than those specifically identified in the EULA Acceptance Form, even if it is also technically possible for Licensee to access other Software components Licensee may permit Business Partners to Use the Software only through screen access, solely in conjunction with Licensee’s Use, and may not Use the Software to run any of Business Partners’ business operations. 

3. TERM

3.1. Term

This Agreement shall become effective upon signing the proposal for any service provided by Solutech Limited and shall continue in effect thereafter unless terminated upon the earliest to occur of the following: 

1. Thirty (30) days after Licensee gives Solutech Limited written notice of Licensee’s direction to terminate this Agreement, for any reason; 
2. Thirty (30) days after Solutech Limited gives Licensee written notice of Licensee’s material breach of any provision of this Agreement (other than Licensee’s breach of its obligations under Sections 5, 7 or 8, which breach shall result in immediate termination).
3. Immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or a petition for the opening of insolvency proceedings or similar proceedings if filed against the Licensee. 
4. If the terms of the set forth in the Contract have been breached.

For the avoidance of any doubt, termination of this Agreement shall strictly apply to all Software licensed under this Agreement, its appendices, schedules, addenda and order documents and any partial termination of this Agreement by Licensee shall not be permitted in respect of any part of this Agreement, its appendices, schedules, addenda, order documents. 

3.2 End of Term Duties

Upon any termination hereunder, Licensee shall immediately cease Use of all Solutech Materials and Confidential Information. Within thirty (30) days after any termination, Licensee shall irretrievably destroy or upon Solutech Limited’s request deliver to Solutech Limited all copies of Solutech Materials and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Solutech Limited shall irretrievably destroy client’s data as part of its Data Retention policy. Licensee must certify to Solutech Limited in writing that it has satisfied its obligations under this Section 3.2. Licensee agrees to certify in writing to Solutech that it has performed the foregoing. Sections  3.2, 4, 5.2, 6, 7, 9.4, 9.5, 9.6 and 9.8 shall survive such termination. In the event of any termination hereunder, Licensee shall not be entitled to any refund by Solutech Limited of any payments made by Licensee to Solutech Limited. Termination shall not relieve Licensee from its obligation to pay fees that remain unpaid. 

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Reservation of Rights

Solutech Materials and Solutech Confidential Information and all title, rights and interest, especially, without limitation, any Intellectual Property Rights embodied therein are the sole and exclusive property of Solutech Limited, subject to any rights, title or interest expressly granted to Licensee in Section 2 herein. Except for the rights set forth in Section 2 , Licensee is not permitted to modify or otherwise make derivative works of the Software or other Solutech Materials. 

4.2 Protection of Rights

Licensee is not entitled to copy, translate, disassemble, decompile nor reverse engineer the Software or other Solutech Materials. Licensee must not create or attempt to create the source code from the object code of the Software or other Solutech Materials. Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the Software. Backup copies on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media, unless technically infeasible. Licensee must not change or remove Solutech Limited’s copyright and authorship notices. 

4.3 Modifications/Add-ons

4.3.1 Solutech Limited retains the right to independently develop its own Modifications or Add-ons to the Software, and Licensee agrees not to take any action that would limit Solutech’s sale, assignment, licensing or use of its own Software or Modifications or Add-ons thereto. 

5. PERFORMANCE WARRANTY

5.1 Warranty

Solutech Limited warrants that the Software will substantially conform to the specifications contained in the Blueprint. The warranty does not apply: 

1. If the Software is not used in accordance with the Documentation.
2. If the non-conformance is caused by unforeseen circumstances including and not limited to network outage and server failure, Licensee, another third party, third party software, third party database or any other software not distributed bySolutech Limited.
3. To any Licensee unlicensed activities. Solutech Limited does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software are designed to meet all of Licensee’s business requirements. Provided Licensee notifies Solutech in writing with a specific description of the Software’s nonconformance within the contract period and Solutech Limited validates the existence of such nonconformance, Solutech Limited will, at its option repair the nonconforming Software

This is Licensee’s sole and exclusive remedy under this warranty. Licensee’s written notification of any nonconformance must include sufficient detail for Solutech Limited to analyze the alleged nonconformance. Licensee must provide commercially reasonable assistance to Solutech Limited in analyzing and remediating any nonconformance of the Software. 

5.2 Express Disclaimer

SOLUTECH LIMITED DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WITH RESPECT TO THE SOFTWARE EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. 

6. LIMITATIONS OF LIABILITY

6.1 Not Responsible

Solutech Limited will not be responsible under this Agreement:

1. If the Software is not used in accordance with the Documentation;
2. If the defect or liability is caused by Licensee, or third-party software.
3. For any Licensee activities not permitted under this Agreement. 

SOLUTECH LIMITED WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE LICENSED HEREUNDER. 

6.2 Exclusion of Damages and Limitation of Liability

ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR 

1. DAMAGES RESULTING FROM:
   1. UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION,
   2. FRAUD OR WILFUL MISCONDUCT.
   3. DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR ARISING FROM EITHER PARTY’S WILLFUL MISCONDUCT.

6.3 The provisions of this Agreement allocate the risks between Solutech Limited and Licensee. The license fees paid by Licensee reflect this allocation of risk and the limitations of liability herein. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended by the Parties to be severable and independent of any other provision and to be enforced as such.

7. CONFIDENTIALITY

7.1. Use of Confidential Information

Confidential Information must not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the Disclosing Party, the party receiving the Confidential Information (“Receiving Party”): 

1. Shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential.
2. Shall not disclose any Confidential Information of the other to any person other than its bonafide individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder, and who are under obligations of confidentiality substantially similar to those set forth herein. 

As used herein “Reasonable Steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either Party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder. 

7.2 Exceptions

The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: 

1. Is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; 
2. Has become generally available to the public without breach of this Agreement by the Receiving Party.
3. At the time of disclosure, was known to the Receiving Party free of restriction;
4. The Disclosing Party agrees in writing is free of such restrictions. 

7.3 Statement of Non-Disclosure

Licensee shall not disclose the terms and conditions of this Agreement to any third party. Licensee agrees that any member of Solutech Limited may use Licensee’s name in customer listings or, at times mutually agreeable to the Parties, as part of Solutech Limited’s marketing efforts (including without limitation reference calls and stories, press testimonials, site visits). Solutech Limited will make reasonable efforts to avoid having the reference activities unreasonably interfere with Licensee’s business. Licensee agrees that Solutech Limited may share information on Licensee with any other member of Solutech Limited for marketing and other business purposes and that Licensee has secured permission from its employees to allow Solutech Limited to share business contact information with any other member of Solutech Limited. 

8. ASSIGNMENT

Licensee may not, without Solutech’s prior written consent, assign, novate, delegate, pledge, subcontract or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or Solutech Materials or Solutech Limited’s Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Solutech Limited may assign, novate, delegate, pledge, subcontract or otherwise transfer this Agreement or any of its rights or obligations thereunder (in whole or in part) to any member of Solutech Limited or any other entity that would acquire Solutech or merge with Solutech Limited. Solutech Limited may use third parties as sub-contractors for fulfilling any of its rights or obligations under this Agreement. Solutech Limited will continue to be liable for such obligations. 

9. GENERAL PROVISIONS

9.1 Retention of Data

With regard to business transactions covered by this Agreement, End User must retain any records for a period of six months  starting on the date of termination of contract, or for the minimum period prescribed by applicable law, whichever is shorter. In addition, Licensee must maintain current, complete and accurate reports on all of Solutech’s Confidential Information in its possession or in the possession of its representatives. 

9.2 Severability

It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be wholly or in part illegal, invalid or unenforceable in any respect, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. The illegal, invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in the case of contractual gaps. 

9.3 No Waiver

If either Party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof. 

9.4 Counterparts

This Agreement may be consented to in one or more counterparts, each of which will be considered an original but all of which together form one and the same instrument and will be treated as if the signatures on the counterparts were on a single copy. This Agreement may be validly executed by means of transmission of signed facsimile, pdf, an acceptance on a Mobile or a Web Application that is authored or maintained by Solutech Limited or any other documented form for which a process has been provided by Solutech Limited. Signatures sent by fax, pdf, email or other electronic means for which a process has been provided by Solutech Limited shall be deemed original signatures. 

9.5 Regulatory Matters

The Software, Documentation and Solutech Materials as well as parts of any of these (e.g. new versions, releases, updates, upgrades, patches, fixed or correction of a software product) are subject to Export Laws of various countries, including, without limitation, the laws of the Republic of Kenya. Licensee agrees that it will not submit the Software, Documentation or other Solutech Materials or parts of any of these to any government agency for licensing consideration or other regulatory approval without the prior written consent of Solutech Limited, and that it will not export, re-export or import any Software, Documentation and/or Solutech Limited Materials to countries, persons or entities prohibited by any applicable Export Law. In that context, Licensee is responsible for complying with all applicable Export Laws. If Solutech Limited wants to deliver and/or grant access to Software, Documentation other Solutech Materials, or parts of any of these directly to a Licensee, Licensee will support Solutech Limited and any other member of Solutech Limited in obtaining any required authorization, approval or other consent from the competent authorities by providing any necessary or useful declarations or other necessary or useful information, e.g. Licensee certificates, as may be requested by Solutech Limited or any other member of Solutech Limited. Licensee acknowledges that the delivery of and/or granting of access to Software, Documentation and Solutech Materials as well as parts of any of these may be subject to the prior obtaining of export or import authorizations or both from the competent authorities and that this process may:

1. Considerably delay or prevent the delivery of and/or granting of access to Software, Documentation and Solutech Materials or part of any of these.
2. Impact Solutech Limited’s ability or the ability of any other member of Solutech Limited to provide other services.
3. Lead to Solutech Limited having to limit, suspend or terminate Licensee’s access to support services or other services. Solutech Limited does not assume any responsibility or liability:
   1. For any delay caused in the delivery and/or granting of access to Software, support, Documentation and Solutech Materials or parts of any of these due to export or import authorizations or both having to be obtained from the competent authorities; 
   2. If any required authorization, approval or other consent for the delivery of and/or granting of access to Software, Documentation and Solutech Materials or parts of any of these cannot be obtained from the competent authorities; 
   3. If the delivery of and/or granting of access to Software, Documentation and Solutech Materials or parts of any of these is prevented due to applicable Export Laws.
   4. If access to any service/ product offered by Solutech Limited or other services has to be limited, suspended or terminated due to applicable Export Law. Solutech Limited may terminate this Agreement and the license granted hereunder with thirty days’ prior written notice if Solutech Limited or any relevant member of Solutech Limited may not deliver or grant access to Software, support, Documentation and Solutech Materials to Licensee due to an embargo or other comparable trade sanction, which is expected to be in place for six months or longer. 

9.6 Governing Law; Limitations Period

This Agreement and any claims (including any non-contractual claims) arising out of or in connection with this Agreement are governed by the laws of Kenya to the exclusion of the international law of conflicts and the UN Sales Convention. The exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement (including any dispute regarding the existence, validity or termination of this Agreement) is Nairobi, Kenya. Licensee must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within six (6) months from the date when Licensee knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s). 

9.7 Notices

All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of Solutech Limited and Licensee using email, courier services or other electronic means. Where in this Section 9.7 or elsewhere in this Agreement a written form is required, except for any notice of termination or notice of a material breach which shall occur by exchange of letter(s), that requirement can be met by facsimile transmission, exchange of letters or other written form, including email or other electronic means for which a process has been provided by Solutech Limited. 

9.8 Force Majeure

Neither party shall be liable to the other or deemed to be in breach of contract by reason of any delay in performing or failure to perform any of its obligations in relation to this Contract if the delay or failure is due to force majeure. The term force majeure, as used herein shall mean Acts of God, strikes, lock-outs or other industrial disturbances, acts of a private enemy, wars (whether declared or not), blockades, insurrection, riots, pandemics, epidemics, landslides, earthquakes, storms, lightning, floods, washouts, civil disturbances, explosions and any other similar unforeseeable events, not within the control of either party and which, by exercise of due diligence, neither party is able to overcome.

If either party considers that any circumstances of force majeure have occurred which may affect the performance of its obligations, it shall promptly notify the other party giving details of the nature, the probable duration, and the likely effect of the circumstances. Each party shall continue to perform its obligations under this Contract as far as is reasonably practicable, and shall seek all reasonable alternative means for the performance of its obligations, which are not prevented by the force majeure event.

If circumstances of force majeure have occurred and continued for a period of 30 days, either party shall be entitled to serve upon the other 30 days’ notice to terminate this Contract. If, at the expiry of the period of 30 days, force majeure still continues, this Contract shall terminate and, in consequence thereof, under the law governing this Contract, the parties shall be released from further performance of this Contract.

9.9 Entire Agreement

This Agreement constitutes the complete and exclusive statement of the agreement between Solutech Limited and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the Parties disclaim any reliance on any such representations, discussions and writings. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Licensee to Solutech Limited. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap end user agreement included in the Software. This Agreement does not create any partnership, joint venture or principal-and-agent relationship. 

9.10 Amendments

Any modification, amendment or supplement to this Agreement (including this Section 9.10 (Amendments) must be made in writing or in any other documented form for which a process has been provided by Solutech Limited. 

9.11 Effective Date

If a Party signs or consents a part of this Agreement or the contract where listed but fails to date its signature, the date that the other Party receives the signing Party’s signature will be deemed to be the date on which the signing Party signed that part of the Agreement. 

9.12 WAIVER OF JURY TRIAL

EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION COMMENCED UNDER OR IN CONNECTION TO THIS AGREEMENT. 

9.13 Hierarchy

The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: 

1. The EULA Acceptance Form;
2. The EULA.

9.14 Survival

Sections 4.1 (Reservation of Rights), 4.2 (Protection of Rights), 5 (Performance Warranty), 6 (Limitations of Liability), 7 (Confidentiality), 9.1 (Retention of data), 9.2 (Severability), 9.6 (Governing Law; Limitations Period), 9.12 (Waiver of Jury Trial) shall survive any termination of this Agreement.

9.15 Consent

By agreeing to this consent, you acknowledge that your data, including personal data of the data subjects where necessary, will be processed through our forecasting algorithm for the purpose of improving the services that are rendered to the Controller. You have the right to withdraw this consent at any time. The processing of your data will be conducted in accordance with the Data Protection Act of 2019. For any inquiries or concerns regarding your data, please contact dpo@solutech.co.ke.

Subject to mutual agreement, the other Party hereby consents to the use of its logo by the Service Provider for the purpose of integrating the said logo into the application. This integration aims to personalize the services provided by the Service Provider and for marketing purposes. Both Parties acknowledge and agree that such use shall be in compliance with any applicable laws and regulations, and the Party providing the logo retains all intellectual property rights therein

Last revised: 16 November, 2023.