SUBSCRIPTION AGREEMENT
This Subscription Agreement (“Agreement”) is made and entered into
immediately upon acceptance of its terms and conditions by you, or immediately
upon your use of the Services, as defined below, and is between you and Vipi Solutions Limited, a limited liability company incorporated in Kenya(“Vipi”). Vipi provides
a website (“Website”) that automates your access to various programmes (“Services”).
You desire to use the Services pursuant to the terms and conditions in
this Agreement.
You and Vipi hereby agree as
follows:
1. Changes. From time
to time Vipi may update the
terms and conditions of this Agreement without notice. If you elect not to
accept the new terms and conditions, then Vipi may, in its sole discretion, immediately
terminate this Agreement, discontinue providing the Services, and may refund to you the amount of money that you have prepaid for Services
that you have not received on the date you elect not to accept the new terms
and conditions. Your use of the Services after an update of the terms and
conditions of this Agreement shall constitute your consent to such changes.
2. Trial. Vipi may allow you to use the Services without
charge for 30 days or another amount of time as determined solely by Vipi (“Trial Period”). During the Trial Period you
will not incur any Charges, as defined in Section 3. At the end of the Trial
Period, if you have not converted your account to a paying account by providing
a Payment Mechanism (as defined in Section 4), Vipi will delete your account and all data
associated with your account. The Trial Period ends immediately at the end of
the time period specified by VIPI or when you provide a Payment Mechanism,
whichever is earlier.
3. Services and Charges.
In consideration of the payment of Charges, as defined below, Vipi will provide the Services to you, subject to
the terms and conditions of this Agreement. “Charges” means the monthly fees
applicable to the particular Services you have elected to receive from Vipi. You have either agreed to pay on a per order
basis (“Order Payment”) or a flat monthly fee (“Flat Fee”). If you have agreed
to Order Payment then for all Services that you receive you will be billed one
month in arrears, each month, based on the number of orders for the previous
month. If you have agreed to pay a Flat Fee, then for all Services that you
receive you will be billed one month in advance, each month, on the day that
you initially registered for the Services. If you cancel the Service you will
be immediately billed for the Services you have used that you have not already
paid. You will not receive a refund or credit for a partial month when you
cancel the Service. All Charges are exclusive of all taxes, levies, or duties
imposed by taxing authorities, and you shall be responsible for payment of all
such taxes, levies, or duties, excluding only United States (federal or state)
taxes owed by VIPI.
4. Payment Terms. You
shall pay Vipi for all Charges
through credit card, paypal, Mpesa, google checkout, or similar payment mechanism that Vipi accepts (“Payment Mechanism”). You agree to
provide Vipi the expiration
date and other information requested by Vipi pertaining to the Payment Mechanism, and you
hereby authorize Vipi to charge the
Payment Mechanism for all Charges applicable to your purchase of the Services
provided pursuant to this Agreement. Upon cancellation or expiration of your
Payment Mechanism, you agree to immediately provide a new Payment Mechanism and
other information requested by Vipi pertaining thereto. If Vipi provides payment terms to you, you agree to pay all Charges in
accordance with such payment terms. If you have not paid all sums due Vipi in accordance with the terms hereof, a monthly
finance charge equal to the lesser of (a) 2%
per month, or (b) the highest amount permitted by law, shall accrue and be
payable each month until paid in full. Furthermore, upon your failure to make
payment in accordance with the terms hereof, a late fee of ten percent (10%) of
the amount past due shall be due and payable by you with respect to each such
late payment. The waiver of a finance charge, late fee or any portion thereof
shall not be deemed to be a waiver of any future finance charges or late fees.
You shall be liable to Vipi for any and all costs and expenses incurred by Vipi, including without limitation advocate fees and expenses, in collection of any past
due amounts hereunder.
5. Limitations. As a
condition of using the Services you represent and warrant that you will not use
the Website or Services for any illegal or unauthorized purpose, and your use
of the Website and Services will not violate any laws in your jurisdiction
(including but not limited to copyright laws). If your bandwidth usage related
to the Services consistently or significantly exceeds the average bandwidth
usage of other users of the Services, as determined solely by Vipi, Vipi reserves the right to immediately disable your account or throttle your
usage until you can reduce your bandwidth consumption.
6. User Name and Password.
During the registration process you created a user name and password that
allows you to have access to the Services through the Website. You will not
provide your user name or password to access Services to any other person or
entity, or allow any other person or entity to access Services provided to you
under your user name and password. You agree that you are solely responsible
for any actions that occur under your user name and password. In the event that
your user name and password become known by a third party you agree to notify Vipi immediately.
8. Website. You
acknowledge and agree that the information and Services provided by Vipi are accessed by you in part through the
Website. You accept and agree to comply with the Terms of Use, Privacy Policy,
and copyright and trademark notices of Vipi posted on the Website and in effect from time
to time. The Terms of Use are incorporated into this Agreement by reference.
You acknowledge and agree that, because the Services are provided in part
through the Website, it is necessary for you to have computer equipment and an
internet connection that meets minimum specifications published by Vipi from time to time on the Website, and you
acknowledge and agree to periodically update your computer equipment or
internet connection to meet such minimum specifications. You acknowledge that
the Services may be interrupted due to (a) Website downtime for scheduled
maintenance at Vipi’s sole
discretion, or (b) interruptions in internet connectivity or other Website
downtime caused by circumstances beyond Vipi’s control, including, without limitation, acts
of God, acts of government, flood, fire, earthquakes, civil unrest, acts of
terror, strikes or other labor problems, computer or telecommunications
failures, delays involving hardware or software not within Vipi’s control, network intrusions or denial of
service attacks. You agree that Vipi shall not, in any way, be liable for, or have responsibility with
respect to, any such Service interruptions.
9. User Content. You
intend to load or give Vipi access to your customer information and other information (“Content”)
to be used by the Services. Vipi acknowledges that, as between the parties, all Content shall remain
your property. You acknowledge that Vipi is not responsible for Content you input into the Website or otherwise
provide access to. You hereby grant Vipi a license to store, access, modify (but only temporarily to conform
with the application programming interface of a third-party program), and use
the Content to provide the Services. You acknowledge that VIPI will be
providing the Content to third parties in the process of providing the
Services. VIPI has no liability for the action or inaction of such third
parties or a third party’s misuse or misappropriation of the Content. You
understand that your Content may be transferred over various unencrypted
networks that may not be secure. Vipi is not liable for the disclosure of your Content due to any such
transfer.
10. Ownership. Vipi owns all right, title
and interest in (i) the software that implements the Services and (ii) all
elements of the Website. You do not acquire any ownership or rights in the
Services or Website except as expressly provided herein. The Services and
Website are copyrighted. Unauthorized copying of any element of the Website or
Services or any accompanying written materials is expressly forbidden. You
agree that you may be held legally responsible for any copyright infringement
that is caused or encouraged by your failure to abide by the terms of this
Agreement.
11. Updates. Vipi may, from time-to-time, upgrade or modify the
Services and the Website (“Updates”). All Updates are provided to you pursuant
to the terms and conditions of this Agreement.
12. Technical Support. Vipi agrees to provide technical support to you as long as you have paid all Charges owed under this
Agreement. Technical support is only available by electronic mail using the
support email provided on the Website.
13. Application Programming Interface. Vipi may provide you
access to the Services through an application programming interface (“API”).
Any use of the API, including use of the API through a third-party product that
accesses the Services provided by Vipi, is governed by the terms and conditions of this Agreement. Abusive or
excessively frequent requests to Services through the API, as solely determined
by Vipi, may result in the temporary or permanent
suspension of your access to the API. Vipi reserves the right at any time to modify or
discontinue, temporarily or permanently, your access to the API, or any part
thereof, with or without notice.
14. Termination. If you
choose to cancel your subscription, you must terminate your use of the Services
by canceling your subscription within your account dashboard via the Website. Vipi may terminate your use of the Services and
deny you access to the Website at any time for any reason. If your use of the
Services is terminated any Content stored by Vipi will be deleted immediately and your user name
and password will be immediately disabled. Any Content deleted by Vipi because of the termination of your use of the
Services cannot be retrieved.
15. Website Modifications; Price Changes. Vipi reserves the right at any time and from time to time to modify or
discontinue, temporarily or permanently, the Website or Services (or any part
thereof) with or without notice. Charges of all Services, including but not
limited to fees for monthly Services, are subject to change upon 30 days’
notice from Vipi. Such notice
may be provided at any time by posting the changes to the Website. Vipi shall not be liable to you or to any third
party for any modification, price change, suspension
or discontinuance of the Website.
16. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE
WEBSITE ARE PROVIDED “AS IS”, AND VIPI AND ITS SUPPLIERS AND
LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED
WARRANTIES OF EVERY KIND RELATING TO THE SERVICES AND WEBSITE (INCLUDING,
WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES THAT THE SERVICES
(OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE
UNINTERRUPTED OR ERROR-FREE. Vipi does not warrant that the results that may be obtained from the use of
the Services will be accurate or reliable or that any errors in the Website or
Services will be corrected.
17. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Vipi be liable under any theory of liability for
any consequential, indirect, incidental, special, punitive or exemplary damages
of any kind (“Consequential Losses”), including, without limitation,
Consequential Losses arising from loss of profits, revenue, data or use, or
from interrupted communications or damaged data or Content, or from any defect
or error or in connection with your acquisition of substitute goods or services
or from malfunction of the Services, or any such Consequential Losses arising
from breach of contract or warranty or from negligence or strict liability,
even if Vipi or any other
person has been advised or should know of the possibility of such Consequential
Losses, and notwithstanding the failure of any remedy to achieve its intended
purpose. Vipi entire
liability under any provision of this Agreement is limited to, in Vipis sole decision, the repair or replacement of
the Services or Website, or an amount equal to the Charges paid under this
Agreement.
18. Indemnification.
You agree to indemnify, defend and hold harmless Vipi, and the officers, directors, employees,
agents, contractors, subsidiaries, affiliates, or parent companies of Vipi (each an “Indemnified Person”) from any loss,
cost, expense (including attorney’s fees, expert’s fees, and expenses), demand,
claim, liability, damages or cause of action of any kind or character
(collectively referred to as “Claim”), including without limitation, for any
personal injury or death, in any manner arising out of or relating to your, or
your officers, directors, employees, agents, assigns, invitees, or other users
using the Services under your user name and password, whether authorized or not
(i) violating or otherwise breaching of any provision of this Agreement, (ii)
acts or omissions in the conduct of your business, (iii) negligence,
recklessness or intentional misconduct, and (iv) violation of any and all laws,
rules or regulations. You further agree to indemnify, defend and hold each
Indemnified Person harmless from any Claim, including without limitation, for
any personal injury or death, in any manner arising out of or relating to Vipis refusal to provide Services to you for any
reason. These obligations will apply even if such lawsuit or other claim arises
out of an Indemnified Person’s negligence, gross negligence, failure to perform
duties under this Agreement, strict liability, failure to comply with any
applicable law, or other fault. This provision shall survive the termination of
this Agreement.
19. Third Parties.
Through the Services Vipi provides integration to various e-commerce tools provided by third
parties as indicated on the Website (collectively, “Third Parties”). Any
copyright or trademark rights are retained by their respective Third Party
owners, and any copyrighted images of Third Parties on the Website are used
solely for informational purposes. Vipi is not an authorized distributor of any Third Party
products. Vipi is an
independent company and is in no way affiliated with any of the Third Parties.
You understand and acknowledge this disclaimer, and will not construe any
information, data, images, or representations from Vipi or the Website as having any affiliation with
the Third Parties. If the e-commerce tools provided by Third Parties do not
work or provide accurate information then the Services VIPI provides will not
work correctly.
20. Miscellaneous.
(a) No Third Party Beneficiaries. Nothing contained in this
Agreement will be deemed to create, or be construed as creating, any third
party beneficiary right of action upon any third party.
(b) Waiver. No party will be deemed to have waived any provision
hereof unless such waiver is in writing and executed by a duly authorized
officer of the waiving party. No waiver by either party of any provision hereof
will constitute a waiver of such provision on any other occasion.
(c) Assignment. This Agreement is not assignable by you except
upon the prior written consent of Vipi. Any unauthorized assignment of this Agreement is void. Vipi may assign this Agreement, in whole or in
part, or subcontract its obligations under this Agreement, in whole or in part,
without notice to you and upon such assignment, Vipi shall be released from all liability
hereunder.
(d) Severability. The invalidity or unenforceability, in whole or
in part, of any provision, term, or condition hereof will not affect the
validity or enforceability of the remainder of such provision, term, or
condition or of any other provision, term, or condition.
(e) Notices. Except as specifically provided in this Agreement,
all notices required hereunder shall be in writing and shall be given by
personal delivery, electronic mail, overnight courier service, first class mail
postage prepaid, at the parties’ respective addresses set forth herein, or at
such other address(es) as shall be specified in writing by such party to the
other party in accordance with the terms and conditions of this Section. All
notices shall be deemed effective upon personal delivery, or upon delivery if
sent by electronic mail, or one business day following deposit with any
overnight courier service, or three business days following deposit with the
Postal office.
(f) Governing Law. The terms and conditions of this Agreement are
governed by and construed in accordance with the laws Kenya.
(g) Jurisdiction and Venue. The parties hereby irrevocably submit
to the jurisdiction of courts
in Kenya.
(h) Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior oral or written
agreements between the parties. This Agreement may not be amended unless such
amendment is in writing and signed by all parties hereto.
If you have any questions about this Agreement please contact Vipi at …………………………………..