We are at your Service!
IMPORTANT: THIS TECHNICAL SUPPORT AGREEMENT IS A LEGAL
AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR COLLECTIVELY ON BEHALF OF
YOUR BUSINESS ENTITY) AND APLIN LIMITED. READ IT CAREFULLY. AMONG
OTHER PROVISIONS, IT CONTAINS TERMINATION AND WARRANTY INFORMATION AND
LIABILITY DISCLAIMERS. BY CLICKING THE “I AGREE” BUTTON AND USING THE
SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TECHNICAL SUPPORT
AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT
USE THE SERVICES. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR
CONTINUED ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
1.1 “Agreement” means this Technical Support Agreement.
1.2 “Applicable Law” means applicable international, federal, state or
local laws, statutes, ordinances, regulations or court orders.
1.3 “Beta Version” means any version of the Software released by APLIN
for testing as determined by APLIN in its sole discretion, including
without limitation versions of the Software designated by APLIN as
1.4 “Effective Date” has the meaning given in the Support Pricing Agreement.
1.5 “EULA” means the applicable End-User License Agreement for the Software.
1.6 “Incident” means a request by you for assistance in addressing a
single technical problem relating to the Software. APLIN shall make the
final determination as to what constitutes an “Incident” in its sole
1.7 “Intellectual Property Rights” means trade secret rights, rights in
know-how, moral rights, copyrights, patents, trademarks (and the
goodwill represented thereby), and similar rights of any type under
Applicable Law, including all applications for and registrations of any
of the foregoing.
1.8 “Licensee” means, as applicable, (i) an authorized third-party end
user of the Software who obtained a Software License from You, or (ii)
1.9 “Normal Business Hours” means (a) twenty-four hours a day, seven
days a week in the case of technical support related Incidents; and (b)
9:00 a.m. to 5 p.m. GMT +3 during business days and excluding holidays
in the case of billing related Incidents. APLIN may amend the
definition of “Normal Business Hours” from time to time in its sole
discretion by providing notice of such change on its website.
1.10 “Priority Support” means the Services provided by APLIN to
individuals or entities who have purchased Priority Support from APLIN.
1.11 “Priority Support Fees” has the meaning given in Section 4 (Priority Support Fees).
1.12 “Scheduled Service Outage” means a period of time specified by APLIN during which APLIN will not provide the Services.
1.13 “Services” means the technical support services provided by APLIN
in connection with this Agreement whether such services are provided via
email, telephone support, the APLIN website (including without
limitation the APLIN Client Area, the documentation, Frequently Asked
Questions or discussion forums located on the website) or by any other
1.14 “Software” means the APLIN software program(s) for which you are
seeking the Services, and corresponding documentation, source code,
object code, Updates, user interfaces (including without limitation any
web-based interfaces), printed materials and online or electronic
documentation, excluding any third-party components.
1.15 “Standard Support” has the meaning given in Section 2.7.2 (Eligibility for Submission of Incidents).
1.16 “Submissions” has the meaning given in Section 3.5 (Submissions).
1.17 “Support Pricing Agreement” means, as applicable, (a) this
Agreement and any other agreement entered into between you and APLIN for
the provision by APLIN of Technical Support, as applicable, which sets
forth (among other things) the term, any applicable support fees and
the number of Incidents you may submit under the agreement; (b) any
Pricing and Term Agreement entered into between you and APLIN with
respect to the Software which sets forth (among other things) the term,
any applicable Support Fees and the number of Incidents you may submit
under this Agreement; (c) any technical support provisions of the
APLIN EULA entered into between you and APLIN; (d) the term,
termination and the technical support provisions of any other agreement
entered into between you and a APLIN Licensee or reseller for the
provision of technical support services related to the Software. The
Support Pricing Agreement is hereby incorporated by reference and made a
part of this Agreement as though fully set forth herein.
1.18 “Term” has the meaning given in the Support Pricing Agreement.
1.19 “Territory” means the world, except to the extent that the
provision of the Services or the use or distribution of the Software in
certain countries or regions would cause either party to violate
Section 9.13 (Export Controls).
1.20 “Third Party Users” means, as applicable, (i) an authorized
third-party end user of the Software who obtained a Software License
from You, or (ii) You.
1.21 “Trademarks” means all domestic and international trademarks,
service marks, logos, trade names, trade dress, including all goodwill
represented by each of the foregoing, whether registered or
unregistered, of APLIN including without limitation the APLIN logo.
APLIN may add to the foregoing nonexclusive list of Trademarks in its
sole discretion from time to time.
1.22 “Unscheduled Service Outage” means a period of time during which
APLIN is unable to provide the Services or during which it is not
commercially reasonable for APLIN to provide the Services as a result of
unforeseen circumstances including but not limited to force majeure
events such as those set forth in Section 9.1 (Force Majeure).
1.23 “Updates” means any bug fixes, patches and other modifications of the Software provided by APLIN.
1.24 “APLIN” means APLIN Media Limited.
1.25 “APLIN Anonymous Usage Data” means all data collected by APLIN in
connection with the use of the Software by You, including (a) the
licensed or unlicensed status of the Software; (b) the source from which
the license for the Software was obtained; and (c) information about
the server upon which the Software is installed including (i) the public
IP address, (ii) the operating system, (iii) web server version, (iv)
the use of any virtualization technologies on such server, and (v) data
utilized to prevent and combat various server attacks by hackers or
their hardware, including but not limited to assaults such as spam
attacks, brute force attacks, dictionary attacks, phishing, pharming,
and the like. Additionally, “APLIN Anonymous Usage Data” may also
include information collected by APLIN from time to time concerning
which features of the Software are most often used in order to improve
and make adjustments to the Software, including, but not limited to the
number of active modules, PHP version, mySQL version, installed PHP
extensions, installed add-on modules, template utilization, and the
number of active administrators, domains, servers, and active clients.
1.26 “APLIN Client Area” means APLIN’s customer service and Incident
tracking system or such successor system as APLIN may designate from
time to time which is presently available at
http://www.APLIN.com/members or such other URL as APLIN may designate
from time to time.
1.27 “APLIN Licensee” means an individual or entity that has obtained one or more valid licenses for the Software.
1.28 “You” or “Your” means or refers to the individual or entity
entering into this Agreement with APLIN, whether or not such terms are
capitalized in this Agreement.
2.1 Provision of Services by APLIN. Subject to the terms and conditions
of this Agreement, APLIN shall use commercially reasonable efforts to
provide You with the Services during the Term provided that you have not
exceeded (a) the number of Incidents set forth by the Support Pricing
Agreement; or (b) a commercially reasonable number of incidents as
determined by APLIN if the Support Pricing Agreement does not specify
the maximum number of Incidents. Notwithstanding the foregoing, APLIN
may in its sole discretion elect to provide, to not provide or to
provide on a limited basis (a) the Services for Standard Support; and
(b) the Services for Beta Versions of the Software.
2.2 Normal Business Hours. APLIN shall use commercially reasonable
efforts to provide the Services during Normal Business Hours, except in
the event of a Scheduled Service Outage or an Unscheduled Service
2.3 Scope of Services. APLIN will provide the Services only in
connection with Incidents that it determines are related to the Software
or any third-party applications included with the Software. APLIN will
not provide the Services for Incidents that it determines are related
to third-party software not included with the Software, operating
systems, hardware or networks unless APLIN determines, on a
case-by-case basis and in its sole discretion, that such issues are
reasonably related to the Software or any third-party applications
included with the Software.
2.4 Web and Email Support. APLIN shall use commercially reasonable
efforts to provide the Services via its website using the APLIN Client
Area or via email communications. APLIN shall provide the Services, and
all Incidents shall be submitted, in the English language only.
2.5 Location of Services. APLIN shall use commercially reasonable
efforts to provide the Services at any facility it designates for the
provision of such Services. The origin from which a particular Incident
is submitted may be located in anywhere in the Territory. APLIN shall
not provide the Services “on site.”
2.6 Submission of Incidents.
2.6.1 APLIN Client Area. Support must be purchased and all Incidents must be submitted via the APLIN Client Area.
2.6.2 Submission Details. In order for APLIN to provide the Services to
you, you must provide all information requested by APLIN with respect
to each Incident. If you fail to provide sufficient detail regarding
the Incident, APLIN shall not be obligated to provide the Services to
you and the limited warranty of Section 6.2 (Limited Warranty) shall
not apply to the Incident.
2.7 Service Levels.
2.7.1 Standard Support. Any Licensee may submit Incidents to the APLIN
Client Area in the Support Center section of the APLIN Client Area.
Standard Support is provided on a “best efforts” basis with no
guarantees of response time
2.7.2 Priority Support. APLIN offers paid support which is available 8
hours a day, 5 days per week and has a 1 hour guaranteed response time
during these hours. Any APLIN Licensee is eligible to purchase Priority
Support through the APLIN Client Area. Pricing for Priority Support may
be found in the APLIN Client Area and is hereby incorporated into this
Agreement by reference.
2.7.3 Subscription Requirements. Licensees are required to have a
“Support & Updates” subscription enabled in order to receive
Standard Support or Priority Support.
2.7.4 Bulk Discounts on Support Fees. If You are interested in
purchasing (or prepaying for) bulk Priority Support tickets for multiple
Incidents, please contact APLIN for further details.
2.7.5 Priority of Support. APLIN will use commercially reasonable
efforts prioritize its response to Incidents depending upon the level of
support and fees paid applicable to such Incidents. Notwithstanding
the foregoing sentence, APLIN may elect to prioritize its response to a
given Incident depending upon the relative severity of the support
issues reported in other Incidents pending in the APLIN Client Area
regardless of the type of support applicable to such Incidents.
2.7.6 Escalation of Incidents. APLIN maintains internal escalation
procedures with respect to Incidents. In the event that a APLIN
representative is unable to find a resolution to the Incident (assuming a
resolution is commercially feasible), APLIN will escalate the Incident
in accordance with its internal escalation procedures. APLIN may
change its internal escalation system from time to time within its sole
2.7.7 Support Levels. Subject to Section 2.7.5 (Priority of Support),
APLIN will use commercially reasonable efforts to resolve all Incidents
as soon as reasonably possible, but does not make any representations
or warranties as to the timeliness of the resolution of any Incident.
APLIN shall resolve all Incidents subject to Section 2.8 (Resolution of
2.8 Resolution of Incidents. In the event that APLIN resolves your
Incident, or makes a determination that no resolution is commercially
feasible, APLIN will provide you notice through the APLIN Client Area
and close the Incident on such system. Alternatively, APLIN may
determine whether a support issue raised in an Incident constitutes a
bug in the Software (“Software Bug”) or a request for a new feature
(“Feature Request”). If APLIN determines that a support issue raised in
an Incident constitutes a Software Bug or a Feature Request, APLIN will
close the Incident and determine whether such Software Bug or Feature
Request should be forwarded to APLIN’s development team for further
consideration and possible correction or inclusion into the Software.
Any information, feedback, ideas or suggestions you provide to APLIN
with respect to a Software Bug or Feature Request shall be deemed a
Submission. APLIN shall in its sole discretion determine: (a) whether an
Incident has been resolved; (b) whether a resolution is commercially
feasible; (c) whether a support issue raised in an Incident constitutes a
Software Bug or Feature Request; and (d) whether or not and when to
close an Incident. APLIN will not provide the Services for closed
2.9 Support Data. In order to provide the Services to you, APLIN may
collect information from you including but not limited to: (a) IP
addresses, usernames and passwords necessary to login to the FTP, APLIN
Software or other means deemed necessary by APLIN Staff; (b) the
usernames and passwords necessary to login into any account affected by
the Incident, including email accounts, APLIN Licensee accounts,
administrative accounts and other accounts; (c) other information that
you voluntarily supply or that APLIN requests in order to resolve your
Incident; and (d) APLIN Anonymous Usage Data ((a) through (d)
collectively, “Support Data”). APLIN will use commercially reasonable
efforts to preserve the security of the Support Data by using reasonable
physical and electronic security measures (except to the extent APLIN
is required or permitted to disclose, access or use such information by
Applicable Law), but APLIN cannot guarantee the security of such data.
To the extent that Applicable Law requires that you obtain any
consents, permissions or licenses from third parties or to give any
notices or disclaimers to third parties prior your disclosure of
Support Data to APLIN, you agree to comply with such Applicable Laws
prior your disclosure of Support Data to APLIN.
2.10 License Exchange. You agree that this the terms and conditions of
this Agreement and the Support Pricing Agreement shall supersede any
prior agreement and between you and APLIN applicable to any support
services provided by APLIN to you with respect to the Software.
2.11 Conduct. You agree that any illegal, lewd, abusive, profane or
otherwise disturbing submissions by You to APLIN shall constitute a
material breach of this Agreement giving rise to APLIN’s termination
rights in Section 5.2.
3. Intellectual Property Rights.
3.1 Ownership. APLIN owns all right, title and interest, including all
Intellectual Property Rights, in and to, (a) the Software; (b) the
Trademarks; (c) the Services; and (d) any and all Submissions
(collectively, “APLIN IP Rights”).
3.2 No Contest. You acknowledge and agree that the APLIN IP Rights are
and shall remain the sole and exclusive property of APLIN. You agree
that You shall never oppose, seek to cancel, or otherwise contest
APLIN’s ownership of the APLIN IP Rights or act in any manner that would
or might conflict with or compromise APLIN’s ownership of the APLIN IP
Rights, or similarly affect the value of the APLIN IP Rights. Whenever
requested by APLIN, You shall execute such documents as APLIN may deem
necessary or appropriate to confirm, maintain or perfect APLIN’s
ownership of the APLIN IP Rights. In the event APLIN is unable, after
using its reasonable endeavours (which shall not require APLIN to incur
any costs), to secure Your signature on any document or documents
needed to apply for or to confirm, maintain or perfect APLIN’s
ownership of the APLIN IP Rights for any other reason whatsoever, You
hereby irrevocably designate and appoint APLIN as Your duly authorized
attorney-in-fact, to act for and on Your behalf and stead to execute
and sign any document or documents and to do all other lawfully
permitted acts to confirm, maintain or perfect APLIN’s ownership of the
APLIN IP Rights with the same legal force and effect as if executed by
You. In the event You become aware that any third party is, or may be,
infringing the APLIN IP Rights, You agree to notify APLIN of such
3.3 No Implied License or Ownership. Nothing in this Agreement or the
performance thereof, or that might otherwise be implied by law, will
operate to grant you any right, title or interest, implied or otherwise,
in or to the APLIN IP Rights.
3.4 Submissions. With respect to any feedback, suggestions or ideas
(“Submissions”) that you submit to APLIN concerning the Software,
Services, or any of APLIN’s products or services, you agree that: (a)
your Submissions will automatically become the property of APLIN,
without any compensation to you; (b) APLIN may use or redistribute the
Submissions for any purpose and in any way; (c) APLIN is not obligated
to review any Submissions; and (d) APLIN is not obligated to keep any
4 Priority Support Fees. As a condition of the provision of the Services
by APLIN under this Agreement, you shall pay APLIN the amounts for
Priority Support Fees You agreed to pay via the APLIN Client Area in
accordance with the payment terms contained therein. All Support Fees
are subject to change at any time.
5 Term and Termination.
5.1 Term. This Agreement shall commence on the date of Your execution of
this Agreement and shall automatically expire at the end of the Term.
5.2 Termination. APLIN may terminate this Agreement (a) in the event of
your breach of this Agreement upon 30 days notice to you if such breach
remains uncured after the expiration of the 30 day notice period; or
(b) immediately without notice in the event of Your material breach of
this Agreement. You acknowledge and agree that any breach by You of the
following provisions of the Agreement shall each constitute a material
breach: (i) any conduct inconsistent with the APLIN IP Rights as set
forth in Section 3 (Intellectual Property Rights); (ii) any purported or
attempted assignment, transfer, sale or other disposition or
delegation of this Agreement or your rights and obligations with
respect to this Agreement in violation of Section 9.8 (Assignment);
(iii) any breach of Section 4 (Fees); and (iv) any breach of your
representations and warranties under Section 6.1 (Mutual
Representations). Additionally, a material breach by you of any
agreement or contract between you and APLIN, including without
limitation a breach of APLIN's Trademark Usage Policy, any applicable
EULA or the Partner NOC Agreement shall be deemed a material breach of
this Agreement and shall give rise to APLIN’s right to terminate as set
forth in this Section 5.2. The foregoing list of material breaches is a
5.3 Survival. Sections 1 (Definitions), 3 (Intellectual Property
Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7
(Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous)
shall survive termination or expiration of this Agreement for any
6 Warranties; Disclaimer.
6.1 Mutual Warranties. Each party hereto warrants to the other party
that: (a) such party has the full right, power and authority to enter
into this Agreement on behalf of itself and to undertake to perform the
acts required of it hereunder; (b) the execution of this Agreement by
such party, and the performance by such party of its obligations and
duties to the extent set forth hereunder, do not and will not violate
any agreement to which it is a party or by which it is otherwise bound;
(c) when executed and delivered by such party, this Agreement will
constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its representations,
warranties, terms and conditions; and (d) such party will comply with
all Applicable Laws related to the Services and the performance of its
obligations under this Agreement.
6.2 Limited Warranty. APLIN will use commercially reasonable efforts to
resolve any Incident for which you have purchased Telephone Support. If
APLIN determines, pursuant to Section 2.8 (Resolution of Incidents),
that it is us unable to resolve the Incident in a commercially feasible
manner, APLIN will refund any Support Fees associated solely with the
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION
6.2, THE SERVICES ARE PROVIDED “AS IS” AND APLIN HEREBY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE
SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE
SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. APLIN DOES NOT WARRANT THAT
THE SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT
INTERRUPTION. IF THE SERVICES ARE DEFECTIVE, YOU ASSUME THE SOLE
RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND,
EVEN IF APLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR
6.3.1 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE
SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90)
DAYS FROM THE DATE OF DELIVERY OR THE MINIMUM ALLOWED DURATION UNDER
SUCH APPLICABLE LAW.
6.3.2 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APLIN, ITS
AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL
CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY
PROVIDED IN SECTION 6.2.
6.3.3 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7.Limitation of Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, APLIN WILL NOT BE LIABLE FOR ANY LOST PROFITS,
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE
INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR
ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER
CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY
BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE
OR OTHER TORT THEORY OF LIABILITY) EVEN IF APLIN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS
OWED BY YOU TO APLIN UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, APLIN’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER
THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES
COLLECTED BY APLIN FOR THE INDIVIDUAL INCIDENT SUPPORT PURCHASED UNDER
THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED
WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND APLIN’S
ENTIRE LIABILITY SHALL BE FOR APLIN TO REFUND THE SUPPORT FEES PAID FOR
THAT INCIDENT. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND
EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED
WARRANTIES WITH RESPECT TO THE SERVICES AND YOU MUST REPORT ANY
NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO
APLIN NO MORE THAN TEN (10) DAYS FOLLOWING CLOSURE OF THE TICKET.
8. Indemnification. You shall indemnify, defend and hold harmless APLIN
and its directors, officers, staff, employees and agents and their
respective successors, heirs and assigns and APLIN affiliates (and their
its directors, officers, staff, employees and agents and their
respective successors, heirs and assigns) (collectively, the “APLIN
Parties”) from and against any liability, damage, loss or expense
(including reasonable lawyers’ fees and expenses of litigation) incurred
by or imposed upon the APLIN Parties or any one of them in connection
with any claims, suits, actions, demands or judgments (“Claims”)
related directly or indirectly to or arising out of (a) a breach of
your representations, warranties or obligations under this Agreement;
(b) in the event that you submit Incidents on behalf of Licensees, (i) a
breach of a Licensees’ representations, warranties or obligations
under any provisions in a Third Party User’s support agreement relating
to APLIN, the Software or the Services; and (ii) any Claims based upon
or arising from any allegation that a third-party Licensee was harmed
due to any termination or suspension of the Services to such user by
APLIN pursuant to the terms and conditions of this Agreement; provided,
however, that in any such case APLIN or its affiliates, as applicable,
(x) provide you with prompt notice of any such claim; (y) permit you
to assume and control the defence of such action upon your written
notice to APLIN of your intention to indemnify; and (z) upon your
written request, and at no expense to APLIN or its affiliates, provide
to you all available information and assistance reasonably necessary
for you to defend such claim. You will not enter into any settlement or
compromise of any such claim, which settlement or compromise would
result in any liability to the APLIN Parties, without APLIN’s prior
written consent, which will not unreasonably be withheld. You will pay
any and all costs, damages, and expenses, including, but not limited
to, reasonable lawyers’ fees and costs awarded against or otherwise
incurred by APLIN or it affiliates in connection with or arising from
any such claim.
9.1 Force Majeure. No party will be liable for any failure or delay in
performance of any of its obligations hereunder if such delay is due to
acts of God, fires, flood, storm, explosions, earthquakes, general
Internet outages, acts of war or terrorism, riots, insurrection or
intervention of any government or authority; provided, however, that any
such delay or failure will be remedied by such party as soon as
reasonably possible. Upon the occurrence of a force majeure event, the
party unable to perform will, if and as soon as possible, provide
written notice to the other parties indicating that a force majeure
event occurred and detailing how such force majeure event impacts the
performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that
APLIN and you are, and will be deemed to be, independent contractors
with respect to the subject matter of this Agreement, and nothing
contained in this Agreement will be deemed or construed in any manner
whatsoever as creating any partnership, joint venture, employment,
agency, fiduciary or other similar relationship between APLIN and you.
9.3 Choice of Law; Venue; Jurisdiction. This Agreement and any disputes
or claims arising out of or in connection with its subject matter or
formation (including non-contractual disputes and claims) are governed
by and construed in accordance with the laws of Kenya The parties
irrevocably agree that the courts of Kenya have exclusive jurisdiction
to settle any dispute or claim that arises out of or in connection with
this Agreement or its subject matter or formation (including
non-contractual disputes and claims).
9.4 Entire Agreement. This Agreement, together with any Exhibits hereto,
represents the entire agreement between the parties with respect to
the subject matter hereof and thereof and will supersede all prior
agreements and communications of the parties, oral or written.
9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7
(Limitations on Liability; Exclusive Remedies) and Section 8
(Indemnification) are fundamental elements of the basis of the agreement
between APLIN and you and shall inure to the benefit of APLIN. APLIN
would not be able to provide the Software on an economic basis without
9.6 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason, such invalidity,
illegality or unenforceability will not affect any other provisions of
this Agreement, and this Agreement will be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
9.7 Amendment or Modification. This Agreement is subject to change
without prior notice from APLIN. You shall be deemed to have accepted
any changes or modifications by your continuing use of the Software.
Additionally, this Agreement may not be amended, modified, or
supplemented by You in any manner, except by an instrument in writing
signed and agreed to by APLIN.
9.8 Assignment. This Agreement may not be assigned, transferred,
delegated, sold or otherwise disposed of, including without limitation
by operation of law, other than as expressly set forth in this Section
9.8. This Agreement may be assigned, transferred, delegated, sold or
otherwise disposed of in its entirety by APLIN in its sole discretion.
In addition, APLIN may delegate its performance under this Agreement in
whole or in part to one or more affiliates, provided that APLIN will
remain liable and responsible for any performance or obligation so
delegated. A party’s permitted successors or assignees must agree as a
condition precedent to any assignment, transfer or delegation to fully
perform all applicable terms and conditions of this Agreement. No party
may assign this Agreement to any entity that lacks sufficient assets
and resources to continue to perform, to contractually required
standards, all assigned obligations for the remainder of the Term. This
Agreement will be binding upon and will inure to the benefit of a
party’s permitted successors and assigns. Any purported assignment,
transfer, delegation, sale or other disposition in contravention of
this Section 9.8, including without limitation by operation of law, is
null and void.
9.9 Waiver. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. No party will be deemed, by any
act or omission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by the waiving
party, and then only to the extent specifically set forth in such
writing. A waiver with reference to one event will not be construed as
continuing or as a bar to or waiver of any right or remedy as to a
9.10 Remedies Cumulative. Except as expressly set forth herein, no
remedy conferred upon the parties by this Agreement is intended to be
exclusive of any other remedy, and each and every such remedy will be
cumulative and will be in addition to any other remedy given hereunder
or now or hereafter existing at law or in equity.
9.11 No Third-Party Beneficiaries. This Agreement is made for the
benefit of the parties only, and this Agreement is not for the benefit
of, and was not created for the benefit of, any third parties. Except
for the provisions of Clause 8 which are intended to be enforceable by
the Persons respectively referred to therein (each, a "Beneficiary") by
virtue of the Contracts (Rights of Third Parties) Act 1999, the Parties
do not intend that any term of this Agreement should be enforceable,
by virtue of the Contracts (Rights of Third Parties) Act 1999, by any
person who is not a party to this Agreement (including without
limitation any Third Party Users). Notwithstanding the previous
sentence, this Agreement may be terminated or varied in any way and at
any time by the Parties without the consent of any Beneficiary
9.12 Notices. All notices or questions relating to this Agreement shall
be directed to: APLIN Media Limited, Attn: General Counsel, P.O.Box
62148 - 00200,Nairobi, Kenya. Any notice required to be given under
this Agreement shall be deemed given by APLIN when sent to you by
email, telephone, fax or mail to the contact information supplied by
you to APLIN. You may update such information from time to time upon
written notice to APLIN at the address in this Section 9.12. Any
failure by you to provide APLIN with updated contact information will
not invalidate the effectiveness of any notice sent by APLIN to the
contact information previously supplied by you.
9.13 Export Controls. The parties agree to comply fully with all
Applicable Laws, or of any foreign government to or from where a party
is shipping to in connection with the import, export or re-export,
directly or indirectly, of the Software mentioned in this Agreement.
9.14 Time-Limited Claims. Regardless of any Applicable Law to the
contrary, you agree that any claim or cause of action arising out of or
related to the Software or this Agreement, must be filed within one
year after such claim or cause of action arose or be forever barred.
Last Updated 25th April 2022