TozzaPlus means TozzaPlus, a company incorporated in the Republic of Kenya, and the owner of the TozzaPlus platform, website and all intellectual property
Customer means a company, its employees, agents, consultants or representatives who have signed up as users of the TozzaPlus system.
Customer data means any data imported or inputted into the system as part of normal usage of the system.
Service means the online ERP system known as TozzaPlus and the available add on modules, which are all accessible through the internet.
Fee means the monthly subscription fee excluding VAT agreed upon as payment for access to the system within a given timeframe.
Agreement means these terms and conditions and constitutes the entire contract agreed upon by the two parties.
2. Terms of service
2.1. TozzaPlus's obligations
TozzaPlus shall provide a system that is continuously updated with a timely manner to adhere with the legislation relevant in Kenya.
TozzaPlus shall provide swift reaction time on resolving any critical issues relating to the operation and compliancy of the service.
TozzaPlus shall ensure that infrastructure and business procedures are in place to ensure that the system is up and running within 95% of the planned uptime, as well as ensure swift recovery in case of failure (backups).
2.2. Customer obligations
The Customer must have Internet access allowing him to access the World Wide Web for when access is needed to the system. This includes availing backup (i.e. modem) connectivity to ensure service continuity throughout an Internet fallout.
The Customer shall ensure that the contact information (in settings) is correct and timely updated, TozzaPlus is not responsible for any communication sent to erroneous contact information.
The Customer shall at all times keep passwords and logins secure, as well as ensure the (high) quality of such credentials. TozzaPlus is not responsible for any actions resulting from abuse of credentials in the control of the Customer. The Customer should however notify TozzaPlus as soon as possible incase of breach in credentials.
The Customer cannot do a number of things and this includes; misuse the system, undermine its security, not use automated agent and especially not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the system except if formally authorized to do so by TozzaPlus.
Customer acknowledges and agrees that the system, and any necessary software used in connection with the system contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Customer further acknowledges and agrees that the content or information presented to the Customer through the system including the design, structure, layouts, graphical images and underlying source codes belong to TozzaPlus and may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
2.4. Availability and Performance
In order to ensure the continued improvements and maintenance of the system, TozzaPlus reserves the following time slots as maintenance windows in which the system is not guaranteed to be available (but will be in many cases): every Tuesday between 8pm and 10pm and Thursday between 10pm and 11pm. At all other times the system is planned to be available.
TozzaPlus aims to always alert (by email) all Customers in advance if a particular service window is planned to be used.
The timely operations of the Internet is governed by constraints beyond the control of TozzaPlus. Customers should understand that TozzaPlus is not liable for any perceived slow operation of the system.
3. Fees, billing and renewal
Fees for the subscription or use of a service is charged and collected in advance. TozzaPlus will automatically renew the Customer's subscription every month for monthly service, unless terminated in accordance with point 4. termination.
3.2. Free trial
The first 30 days usage of TozzaPlus is completely free and is considered a free trial period, allowing customers to adequately evaluate the system.
All payments must be performed using electronic (mobile) payment methods offered by TozzaPlus at the time of payment, as of writing these include: MPESA and AIRTEL. Any excessive payments will be retained towards the subsequent months payment.
3.4. Non payment
TozzaPlus reserves the right to suspend or terminate this Agreement and Customer's access to the service IMMEDIATELY if Customer's account becomes delinquent.
Customer agrees and acknowledges that TozzaPlus has no obligation to retain Customer data and that such Customer data account becomes delinquent for a period of 3 months.
3.5. Fee changes
TozzaPlus reserves the right to change the subscription fee at any time on thirty-five (35) days advance e-mail notice. Provided that we may not increase your fees more often than once per twelve months.
Either party may terminate this agreement by giving 30 days advanced notice in writing (email is accepted as writing) to the other party. The Customer is able to use the feature within the system to give said notice at any point in time.
Any breach or delinquency of Customer's payment obligations or unauthorized use of the system or service will be deemed a material breach of this agreement. In such case TozzaPlus in its sole discretion, may terminate the Customer's password, account and this agreement instantly.
The Customer agrees and acknowledges that TozzaPlus has no obligation to retain the Customer's data and may delete such Customer data, if Customer has materially breached this Agreement, including but not limited to, failure to pay outstanding fees, and such breach has not been cured within 60 days of payment delinquency or notice of such breach.
The system is protected by copyright and remains the full property of TozzaPlus, the Customer is only allowed usage of the system in return for the subscription fee.
Individually customized software relating to the system also remains the property of TozzaPlus unless otherwise stipulated.
TozzaPlus may at any time transfer its rights and obligations under this agreement to any affiliate, subsidiary or business unit.
5.2. Customer data
Customer data entered into the system remains the full property of the Customer, and is entrusted to TozzaPlus for safe keeping.
Customer agrees and acknowledges that TozzaPlus is entitled to use the entered data only for statistical analysis with the end-goal of improving the service offered to the Customer.
In the case of termination, and unless otherwise specifically stated by the Customer, TozzaPlus reserves the right to retain the data entered with the exclusive goal of providing better service in the situation that the Customer resubscribes.
6.1. Data security
TozzaPlus has taken the necessary technical and organizational security measures to prevent system information from being accidentally or illegally destroyed, lost or wasted. Multiple independent sets of backup exist for all data in the system.
6.2. System security
TozzaPlus is following industry best practices, and is constantly monitoring the system, as well as security developments, in order to ensure that the system is at all times updated with the latest security fixes. TozzaPlus retains at all times staff trained in ensuring these practices and procedures are met.
TozzaPlus including all its employees are bound by secrecy in respect with any Customer data received and will not disclose such information to any third party except where it is required to do so by any court or regulatory authority and then on to the extent necessary.
Internal procedures and tools prevent TozzaPlus employees from accessing Customer data directly without explicit Customer consent.
TozzaPlus shall indemnify and hold Customer harmless from all settlements agreed to by TozzaPlus and all costs and direct damages finally awarded to a third party to the extent they arise out of the fact that the Service as delivered to Customer infringes a third party's patent or copyright. The Customer shall give TozzaPlus all reasonably available information and assistance, at TozzaPlus's expense. TozzaPlus may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in TozzaPlus's sole discretion, terminate the Customer's right to the allegedly infringing Service and refund to the Customer a pro rata portion of the amount which the Customer has paid for such service. The foregoing indemnity will not apply to any infringement claim arising from (a) modification of the Service by parties other than TozzaPlus, (b) combination of the service with hardware and/or other software and/or auxiliary services, if such claim would have been avoided by not so combining the service, or (c) use of the service other than in accordance with TozzaPlus instructions and documentation.
The Customer shall indemnify and hold TozzaPlus harmless from all third party claims and settlements agreed to by the Customer and all costs and direct damages awarded to a third party to the extent they arise out of Customer's infringement of any third party rights, or breach of any provision of this agreement, or making representations or warranties regarding the service to other third parties.
The Customer hereby agrees to indemnify and hold harmless TozzaPlus against any damages, losses, liabilities, settlements and expenses (including without limiting costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of this Agreement or otherwise from the Customer's use of the service.
Nothing in this section shall limit either party's obligations and liability in cases of loss of life, bodily injury, damage to a person's health or in cases of international infliction of harm, deceit, fraud or gross negligence of the other party or of others which the other party employs or uses to perform its obligations. The same shall be true for cases of negligence of such others employed or used by the party in the performance of its service.
8. Limitation of liability
You expressly understand and agree that TozzaPlus SHALL NOT BE LIABLE to you for:
8.1. Customer activity
Any loss or damage which you may incur, including without limitation as a result of any reliance placed by you on the accuracy, completeness or suitability of the system, or any changes TozzaPlus may make to the system, or any temporary interruption or permanent cessation in the provision of the ERP system, or, if applicable, your failure to safeguard your account details or passwords.
8.2. Related damages
To the full extent permitted by law, TozzaPlus is not liable for any direct, indirect, special, incidental, consequential, punitive or exemplary damages arising out of or in connection with your use of or related to the system (including without limitation for loss of or damage to business, revenues, goodwill or data) even if TozzaPlus had previously been advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract, negligence or other tortuous action.
The total liability is limited to maximum the amount of subscription fee paid by the Customer to TozzaPlus within the six (6) months preceding any dispute.
9. General provisions
9.1. Governing laws
These terms are governed by the laws of Kenya. Customer's use of the system and any dispute arising out of such use is subjects to the laws of Kenya.
Any disputes regarding this agreement shall first be resolved between the Customer and TozzaPlus directly, and finally be resolved by an arbitrator.
The arbitrator shall be a single arbitrator in accordance with the provisions of the Kenyan Arbitration Act 1995 as amended and shall be conducted in accordance with the Rule for the Conduct of Arbitrations published by the Chartered Institute of Arbitrators, Kenya Brance current at the date the arbitrator is appointed.
The arbitrator shall be mutually agreed upon or, failing agreement shall be nominated by the Chairman of the Kenyan Institute of Arbitrators.
The venue of any Arbitration hearing shall be Nairobi. The cost of the Arbitration shall be borne equally by each party.
To the extent that any arbitration under this Contract shall be deemed to be a “domestic arbitration” as defined under the Kenyan Arbitration ACT 1995, the parties agree that no application may be made to a court to determine any question of law in the course of the arbitration and no appeal may be made by any party to a court on any question of law arising out of an arbitral award as envisaged by section 39 (1) of that Act.
9.3. Changing terms
TozzaPlus reserves the right to amend these subscription terms, any such changes will applicable within 30 days of notice (email) being send by TozzaPlus.
9.4. Force majeure
Neither TozzaPlus nor the Customer will be in violation of this agreement if the failure to perform the obligation is due to an event beyond our reasonable control, such as significant failure of part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The commencement of your use of TozzaPlus constitutes acceptance of these Terms and Conditions. If you do not agree to these Terms and Conditions do not use the online system.
Version 1.0 – 22. August 2017