Business Terms of Use (Zydii Platform)

Welcome to Zydii.

When you use our Website and Services (“Zydii Platform”) you agree to all of these Terms of Service (“Agreement”). Your use of the Zydii Platform is also subject to our Cookie Policy and our Privacy Policy, which covers how we collect, use, share, and store your personal information.

By clicking “I Agree”, “Sign Up” or similar, registering, accessing or using the Zydii Platform, you are entering into an agreement with Zydii Limited (“Zydii”) and agree to be legally bound by these Terms of Service on behalf of yourself or organization, company or entity for which you act (the “Customer”) and represent that you have the authority to bind the Customer to this Agreement. If you do not agree to this Agreement do not click “I Agree” (or similar) and do not access or otherwise use any of our Services. If you wish to terminate this Agreement, at any time you can do so by closing your account with us and no longer accessing or using the Zydii Platform.

Introduction

Zydii is a workforce upskilling company providing an end to end affordable digital training solution for African businesses.

The Zydii Platform provides learning solutions for organizations including: ready-made digital courses hosted on Zydii’s website and accessible anywhere on any device, digitization of in-house training programs and creation of bespoke training content for organizations (all referred to as the “Services”). The Zydii Platform includes the technology, administrative services and materials relating to structuring and presenting online courses for Authorised Users (as defined below) including Zydii’s proprietary course content, as required for the proper performance and provision of the Zydii Platform.

Definitions and Interpretation
1. The definitions and rules of interpretation in this clause apply in this Agreement:
  1. Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to access and use the Zydii Platform, via the Customer’s account for the specified purpose. The Customer is responsible for Authorised Users’ compliance with this Agreement;
  2. Business Day: a day other than a Saturday, Sunday or public holiday in Kenya;
  3. Business Hours: 8.00 am to 5.00 pm Kenya time, each Business Day;
  4. Charges: the charges payable by the Customer to Zydii in relation to use of the Zydii Platform and Services, as set out in the Order;
  5. Customer’s Course(s): any training program or course developed by Zydii in accordance with the Customer’s Specifications in the course of performing the Services;
  6. Customer Specifications: all Materials; Course specifications including course details, duration, launch date; and data supplied by the Customer to Zydii for purposes of delivery of the Services as specified in the Order;
  7. Data Privacy Laws: Data Protection Laws and any other Applicable Laws now or in the future affecting data protection, privacy, data security or the handling of information about individuals in any other jurisdiction where the Services are provided or received or where any processing of Personal Data relating to the provision or receipt of the Services takes place;
  8. Deliverable(s): the Customer’s Course(s) including all documents, products and Materials, developed by Zydii or its agents, Subcontractors and personnel pursuant to this Agreement made available through the Zydii Platform;
  9. Good Industry Practice: in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances and timescales;
  10. Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  11. Materials: any material in whatever form (including documentary, magnetic, electronic, graphic or digitised), including any methodologies, processes, reports, specifications, business rules or requirements, user manual, user guides, operation manual, training materials and instructions;
  12. Milestones: a date by which a part of the Services is to be completed, as set out in Order;
  13. Order: means an ordering document entered into by and between Zydii and Customer comprehensively setting out the Customer specific terms and conditions for provision of the Services and applicable fees;
  14. Personal Data: information in any form relating to an identified or identifiable individual, and where required by any applicable Data Protection Laws, a legal person;
  15. Pre-existing Materials: those Materials that are owned, licensed to, developed or created by either party prior to the date of this Agreement;
  16. Services Start Date: the first date that the Customer accesses the Zydii Platform;
  17. Sub-contractor: a subcontractor of Zydii, including any of Zydii’s affiliates, which performs the Services pursuant to this Agreement or which employees engaged in the provision of the Services; and
  18. Zydii IPRs: all Intellectual Property Rights subsisting in the Zydii Platform, and Zydii’s Pre-existing Materials and Deliverables excluding any Client Pre-existing Materials incorporated in them.
2. The Order forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Order agreed in accordance with this agreement.
3. Where there is a conflict between the terms of this Agreement and the Order, the terms of this Agreement shall prevail to the extent of the inconsistency.
Commencement and Term
1. This Agreement shall commence on the Services Start Date.
2. This Agreement shall continue, unless terminated earlier in accordance with this Agreement, for one (1) year when it shall terminate automatically unless renewed in writing by the Parties.
Supply of Services
1. Zydii agrees to supply the Services to the Customer from the Services Start Date in accordance with this Agreement.
2. Zydii hereby grants the Customer a non-transferable, non-exclusive, and limited license to use the Zydii Platform, strictly for the Customer's internal learning needs. This right extends to the maximum number of the Customer's Authorized Users as indicated in the Customer's Order, and is valid for the duration of this Agreement. Notwithstanding, in the instance where this Agreement pertains to the provision of specific Customer Course(s) in which Zydii retains intellectual property rights, Zydii grants the Customer an exclusive license to use the Customer’s Course(s) on the Zydii Platform, for the purpose of enhancing the skills and knowledge of the Customer's Authorized Users.
3. For use of the Zydii Platform for delivery of Customer Course(s), the parties shall agree on applicable Customer Specifications and Zydii shall only be bound to supply the Services once it approves the final version of the Customer Specification in the Order to be signed by both Parties in which case they shall be incorporated into this Agreement. 3.5.4. Zydii shall submit to the Customer for its approval any specified draft versions of the Deliverable(s) before delivery of the final version of the Deliverable(s) on the Zydii Platform.
4. The Parties acknowledge that throughout the Term, Zydii retains the unilateral right to modify the Zydii Platform without prior notice, including, but not limited to, alterations of information, data, text, music, sound, photographs, graphics, video, messages, courses, Materials, features, and/or availability hours (hereinafter referred to as a "Platform Change"). This, however, does not apply to Customer Courses accessed via the Zydii Platform, where the Parties are obliged to formulate an addendum to this Agreement, detailing the specifics of the Platform Change and the mutually agreed pricing structure. Should the Customer opt not to implement a Platform Change, Zydii pledges to maintain the same level of services for the relevant Customer Course(s) as outlined in this Agreement. A Platform Change may necessitate an increase or decrease in the fees and expenses and/or an augmentation or reduction in the services provided by Zydii, encompassing:
  1. modifications to the scope or functionality of the Zydii Platform, such as enhancements to Platform features;
  2. the incorporation of a new course option to the Zydii Platform; or
  3. significant alterations in the prioritization or modality of the Services provided by Zydii that result in increased cost or additional development work.
5. Unless the Customer’s Charges plan, as specified in the relevant Order, includes chat support, technical support is solely available via e-mail through the Customer’s designated account administrator.
6. In supplying the Services, Zydii shall:
  1. perform the Services in accordance with Good Industry Practice;
  2. provide regular updates and communication to the Customer; and
  3. use reasonable endeavours to meet any Milestones specified in the Order.
Ownership Rights
1. Zydii and its licensors retain all Intellectual Property Rights in and to the Zydii Platform and its components, including the courses and any Materials. All Materials in the Zydii Platform are the property of Zydii or its third party licensors. Other than the right to use the Zydii Platform for the Term provided in this Agreement, nothing in this Agreement grants the Customer any right in the Services. Zydii reserves all rights to the Zydii Platform not granted expressly in this Agreement. The Customer shall report promptly to Zydii any third-party claim served on Customer relating to the intellectual property rights in the Services or Zydii’s Materials.
2. The Customer will be the sole and exclusive owner and retains all Intellectual Property Rights in all its Pre-existing Materials. In respect of Customer Course(s), the Customer hereby grants to Zydii a non-exclusive royalty free licence to use the Customer’s Pre-existing Materials in the Deliverables to the extent necessary for the purposes of performing the Services in accordance with this Agreement.
3. Each Party grants to the other a non-exclusive, non-assignable, limited, worldwide, non-sublicensable license to use its name, brand name, service marks and logos (the “Marks”) solely in connection with the offering of Customer’s Course(s), on the certificates issued to Authorised Users who successfully complete a course, and in the marketing, promotion, and advertising of each Party’s brand and Zydii’s Platform Services, solely in accordance with the granting Party’s policies and guidelines.
4. Nothing contained in this Agreement shall restrict either Party from the use of any general ideas, concepts, know-how or techniques which either Party, individually or jointly, develops or discloses under this Agreement and which is retained in the memories of the employees of the recipient except to the extent such use infringes the Intellectual Property Rights of the other Party or third parties.
5. Zydii may retain as a professional record, or for follow-on work from the Customer reasonably in contemplation, or so that Zydii can defend itself against any legal claims brought against it (and only for those purposes) a copy of any documentation or software:
  1. prepared or modified by Zydii;
  2. received by Zydii from the Customer or a third party, including the Customer’s Intellectual Property Rights; or
  3. upon which its Zydii’s Services are based.
6. Nothing in this clause or elsewhere in this Agreement shall require Zydii to delete any of its archives or computer back-ups, both of which it will continue to protect in accordance with the terms of this Agreement. Zydii will also make such computer backups or archives reasonably inaccessible.
Third-Party Providers

The Customer acknowledges that the Zydii Platform including its provision of the Customer Course(s), may enable or assist the Authorised Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that the Customer will properly instruct its Authorised Users to do so solely at their own risk. Zydii makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer or its Authorised Users, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer or Authorised Users and the relevant third party, and not Zydii. Zydii recommends that the Customer and its Authorised Users refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Zydii does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Zydii Platform.
Customer’s Obligations
1. The Customer shall:
  1. co-operate with Zydii in all matters relating to the Services, including finalizing the Customer Specifications and Milestones where applicable;
  2. provide, for Zydii, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as reasonably required by Zydii;
  3. provide to Zydii in a timely manner Customer’s Materials reasonably required by Zydii in connection with its performance of the Services and ensure that they are accurate and complete in all material respects;
  4. obtain and maintain all necessary licenses and consents and comply with all relevant legislation as required to enable Zydii to provide the Services, the use of all the Customer’s Materials, in all cases before the date on which the Services are to start;
  5. market and create awareness on the Zydii Platform to the Customer’s staff; and
  6. designate a main point of contact, manager, or any other individual as requested by Zydii to enable engagement with Zydii in the performance of its obligations under the Agreement. That person shall have the authority to contractually bind the Customer on matters relating to the Services.
Restriction

The Customer shall not, nor shall it permit its Authorised Users to, among other things:
1. license, copy, distribute, create derivative works from, sell or re-sell, hack, modify, or interfere with, the proper working of the Services, any of the Customer Course(s), or any third-party system made available through the Services;
2. use, copy, or distribute separately from the accompanying text, any graphics, photographs or other visual elements obtained through the Zydii Platform, without the prior express written consent of Zydii;
3. attempt to deface, shut down or otherwise damage the Zydii Platform;
4. input any inappropriate, infringing, offensive, racist, hateful, sexist, pornographic, harassing, defamatory or libelous content into the Services or instruct Zydii to include any such content in the Services;
5. scrape, spider, or utilize other automated means of any kind to access the Zydii Platform, including but not limited to accessing API endpoints for which Customer or its Authorised Users have not been provided authorization by Zydii;
6. use the Zydii Platform in order to build a competitive product to the Services;
7. share login access to the Services among multiple individuals, transfer a user license (except in connection with a termination of employment), or otherwise permit any party other than the Authorised Users to use the Services;
8. introduce any computer code, file, or program that may damage the Zydii Platform;
9. use the Services in any manner that is unlawful or that infringes the rights of others;
10. use Zydii’s APIs with any third party without prior written approval;
11. use the Zydii Platform to transmit any unsolicited commercial communications;
12. use the Zydii Platform for any purpose other than internal learning; or
13. permit any individual that is under the age of 18 years old to use the Services without the consent of their parent or legal guardian.
Charges and Payment
1. In consideration for the provision of the Zydii Platform, the Customer shall pay Zydii the Charges in accordance with this clause 8.
2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Zydii at the prevailing rate subject to receipt of a valid VAT invoice.
3. Zydii shall submit invoices for the Charges plus VAT to the Customer as per the payment plan set out in the Order. Each invoice shall include all reasonable supporting information required by the Customer.
4. The Customer shall pay each invoice due and submitted to it by Zydii, within thirty (30) days of receipt, to a bank account nominated in writing by Zydii.
5. If the Customer fails to make any payment due to Zydii under this Agreement by the due date for payment, then, without limiting Zydii’s remedies under clause 14 (Termination), Zydii may suspend all Services until payment has been made in full.
6. All amounts due under this Agreement from the Customer to Zydii shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Dependencies
1. The Customer acknowledges that Zydii’s performance may depend on the Customer’s performance of the Dependencies. Zydii shall not be liable for:
  1. any failure to comply with this Agreement or any contract to the extent such failure is directly caused by the Customer’s failure to perform the Dependencies; or
  2. any delay in fulfilling its obligations under this Agreement or any contract to the extent such delay is directly caused by the Customer’s failure to perform the Dependencies, provided always that such relief shall only be granted if Zydii:
    1. has given a written notice to the Customer promptly upon becoming aware of such failure by the Customer to perform the Dependencies; and
    2. uses all reasonable endeavours in accordance with Good Industry Practice to make good any such failure or make up time lost as a result of that delay.
2. Where the Customer is using third parties to provide information, materials or support in respect of the Services, or is employing other service providers and advisers whose work may affect Zydii’s ability to carry out the Services, the Customer will be responsible for the management of such third parties, and their performance, including the timeliness and quality of their input and work. Other than in the normal course of exercising its professional skill and care and raising concerns with the Customer, Zydii will not review services provided by third parties unless this Service is agreed in the Customer Specifications.
3. Without limiting the generality of clause 9.1 and 9.2 above, if Zydii’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, Zydii shall:
  1. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
  2. be entitled to payment of the Charges despite any such prevention or delay; and
  3. be entitled to recover any additional costs, charges or losses Zydii sustains or incurs that arise directly or indirectly from such prevention or delay.
Non-Solicitation

The Customer shall not, without the prior written consent of Zydii, at any time from the date of this Agreement to the expiry of twelve (12) months after the termination or expiry of this Agreement, solicit or entice away from Zydii or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Zydii in the provision of the Services.
Changes to this Agreement
1. Zydii reserves the right to change this Agreement on a going-forward basis at any time upon fourteen (14) days’ notice. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies the Customer’s rights or obligations, Zydii may require that the Customer accept the modified Agreement in order to continue to use the Services. The Customer must accept the modifications to continue accessing or using the Services.
2. If the Customer objects to the modifications, its exclusive remedy is to cease any and all access and use of the Services. If the effective date of the modifications is during the term of this Agreement and the Customer objects to the modifications, then (as its exclusive remedy) the Customer may terminate its affected subscription upon notice to Zydii, and Zydii will refund to the Customer any fees it has pre-paid for use of the Services for the terminated portion of the term of the applicable subscription. To exercise this right, Customer must provide Zydii with notice of its objection and termination within seven (7) days after Zydii provides notice of the modifications. Material modifications are effective upon the Customer’s acceptance of the modified version of the Agreement. Immaterial modifications are effective upon publication.
3. Except as expressly permitted in this clause 11, this Agreement may be amended only by a written agreement signed by the authorized representatives of the parties as designated under this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
Confidentiality
1. Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, employees, independent contractors, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other party belong, except as permitted by clause 12.2
2. Each Party may disclose the other Party’s confidential information:
  1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 12; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No Party shall use any other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
Data Protection
1. In the provision of the Services, Zydii shall be a data processor and the Customer shall be a data controller, for purposes of the relevant Data Privacy Laws.
2. Each Party shall comply with the Data Privacy Laws and the Data Processing Agreement (“DPA”) signed between the Parties. The DPA shall form part of this Agreement.
3. Notwithstanding the provisions of the DPA, the Customer and its Authorised Users may add, upload, or submit information, survey responses, images, text and other data to the Zydii Platform or through the Zydii Platform (“Customer Data”).
  1. The Customer grants Zydii and its licensors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, host, cache, publish, copy, and display Customer Data for the purpose of providing the Services. Except as otherwise provided herein, the Customer retains all right, title and interest in and to the Customer Data. The Customer is solely responsible for the accuracy, content and legality of the Customer Data and for securing all consents and permissions necessary to provide the Customer Data.
  2. Zydii collects, uses, shares and otherwise process Personal Data about the Customer or the Authorised Users, in accordance with Zydii’s Privacy Policy which is hereby incorporated into this Agreement. Zydii may anonymize, aggregate and deidentify the CustomerData (“Aggregate Data”) and may use Aggregate Data for any purpose as long as the Customer nor any Authorised User is not identified.
Termination
1. Without affecting any other right or remedy available to it, either Party to the Agreement may terminate it with immediate effect by giving written notice to the other Party if:
  1. the other Party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fifteen (15) days after being notified in writing to do so;
  2. the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
  3. the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other Party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other Party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, Zydii may terminate the Agreement giving twenty (20) days written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
3. Either Party may terminate the Agreement for any reason by giving thirty (30) days written notice to the other Party.
4. Effect of Termination
  On termination of this Agreement for whatever reason:
  1. the Customer’s license rights shall terminate and the Customer and its Authorised Users must immediately cease all use of the Zydii Platform;
  2. the Customer and its Authorised Users will no longer be authorised to access their accounts or the Services;
  3. the Customer shall immediately pay to Zydii, all of Zydii’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Zydii will submit an invoice, which shall be payable immediately on receipt;
  4. any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
  5. termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
Limited Warranty and Disclaimer
1. Each Party warrants that:
  1. it is a validly existing and duly incorporated entity in accordance with respective local laws;
  2. it has full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its the terms of this Agreement; and
  3. it has taken all necessary corporate action to authorize the creation, execution, delivery and performance of this Agreement, and to observe and perform the provisions of this Agreement in accordance with their terms.
2. Zydii further warrants that throughout the Term, when utilized in accordance with their current documentation and under normal use and circumstances, the Services will operate in material conformance with the documentation.
3. EXCEPT AS SET FORTH IN THIS CLAUSE 15, ZYDII MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE ZYDII PLATFORM AND THE SERVICES IN GENERAL, THE MATERIALS, OR THEIR USE, ACCURACY, OR FUNCTION. SPECIFICALLY, ZYDII PROVIDES THE ZYDII PLATFORM ON AN “AS-IS” BASIS AND “AS-AVAILABLE BASIS” AND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SERVICES SHALL BE DEEMED A WARRANTY OR GUARANTEE FOR ANY PURPOSE OR GIVE RISE TO ANY SUPPLIER’ LIABILITY OF THIRD PARTIES WHATSOEVER. THE CUSTOMER ACKNOWLEDGES THAT IT RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN OR IN THE ORDER. ZYDII DOES NOT WARRANT THAT THE SERVICES OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ZYDII DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. ZYDII DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT IT IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
4. The Customer may be invited by Zydii to try beta versions of the Zydii Platform (“Beta Services”). The Customer may need to agree to additional terms for the Beta Services. The Beta Services are provided for evaluation and feedback purposes only and may not be used in a production environment. The Customer understands that the Beta Services are not generally released and, therefore, are unsupported and may contain bugs, errors, and other issues. The Beta Services are provided on an “AS-IS” basis, without warranty of any kind, and Zydii is not responsible for any problems or issues related to the Customer’s use of the Beta Services. The Beta Services may never be generally available, and Zydii may discontinue the Beta Services in its sole discretion at any time for any reason, and Zydii may delete any Customer Content or any other data on the Beta Services without liability to the Customer.
Limitation of Liability
1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ZYDII AND ITS AFFILIATES BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE CUSTOMER’S ACCESS TO OR USE OF, OR THE CUSTOMER’S INABILITY TO ACCESS OR USE, THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ZYDII ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ZYDII AND ITS AFFILIATES TO THE CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF:
  1. THE AMOUNT THE CUSTOMER HAS PAID TO ZYDII FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR
  2. KES 10,000.
2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS CLAUSE 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
3. Nothing in this clause 16 shall limit the Customer’s payment obligations under the Agreement.
4. Unless the Customer notifies Zydii that it intends to make a claim in respect of an event within the notice period, Zydii shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire one (1) month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
Indemnity

The Customer will defend, indemnify, and hold Zydii harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with:
1. The Customer’s breach of any laws or regulations (including with respect to data protection);
2. The Customer’s or any Authorized User’s use of the services; and
3. The Customer’s violation of any agreements it has with any Authorized User.
General
1. Force Majeure
  Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Assignment and other dealings
  Both Parties shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without prior written consent of the other Party.
3. Entire Agreement
  The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement and its Schedules. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
4. Waiver
  1. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
5. Severance
  If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
6. Notices
  1. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
    1. delivered by hand at its registered office (if a company) or its principal place of business (in any other case); or
    2. sent by email to the address specified below:
      For the Customer: {TO BE INSERTED}
      
      For Zydii: learn@zydii.com
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when Business Hours resume.
  3. This clause 12.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
7. Governing Law
  The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of Kenya.
8. Dispute Resolution
  Any dispute, controversy, or claim arising out of or in connection with this agreement, or the breach, termination or validity thereof, shall be determined by any court of competent jurisdiction in Kenya.

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Business Terms of Use (Zydii Platform)

Introduction

Definitions and Interpretation

Commencement and Term

Supply of Services

Ownership Rights

Third-Party Providers

Customer’s Obligations

Restriction

Charges and Payment

Dependencies

Non-Solicitation

Changes to this Agreement

Confidentiality

Data Protection

Termination

Limited Warranty and Disclaimer

Limitation of Liability

Indemnity

General