1.      Definitions

“Agreement” means the Software Subscription License Agreement and these terms and conditions demonstrated herein, as well as the privacy policy, and any additional policies and annexures that Kudwa shares on its Website, which shall be construed together as a consistent whole.

Reference to the term “Agreement” shall refer to the Software Subscription License Agreement and these terms and conditions, which shall be taken as a whole and be deemed a part of the Agreement and are binding and enforceable provisions.

“Confidential Information” includes, but is not limited to, all information of a commercial, technical, financial, innovative, technological nature pertaining to Kudwa, its legal structure, information technology (IT) infrastructure, Proprietary Information, fees, databases, dashboard(s), know-how, networks, programmes, platform(s), servers, codes, software, processes, technologies, methods, web application(s), systems unique to Kudwa and all confidential information pertaining to the Customer regardless of the form, format or media by which it is conveyed.

“Force Majeure” means an impediment that is (i) beyond a Party’s control, (ii) unforeseeable, (iii) could not have been reasonably overcome or avoided.

“Proprietary Information” includes, but is not limited to, all rights and interests of a proprietary nature, such as registered and unregistered trademarks, designs, patents, know-how, algorithms, all copyrights, rights in computer software, database rights and all Intellectual Property Rights as further defined in this Agreement.

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Software Subscription License Agreement.

2.      Proprietary and Intellectual Property Rights

a.      The Customer agrees that the Proprietary Information provided by Kudwa are the proprietary property of Kudwa. The Customer shall not receive any right, title or interest in or to any Proprietary Information rights.

b.     All rights not expressly granted in this Agreement are reserved by Kudwa.

c.      Kudwa retains all patents, trademarks, trade secrets, inventions, copyrights, licenses, trade names, logos, and other intellectual property rights and similar rights, including without limitation, the right to sue for infringement, unfair competition and passing off (collectively the “Intellectual Property Rights” or “IPR”) in and covering the Software.

d.     For the avoidance of doubt, the Customer shall not, under any circumstances, have or be entitled to hold any IPR in the Software. All IPR and/or interests in the Software, together with any goodwill in or attaching to it, shall be the sole property of Kudwa. Furthermore, the Customer waives and agrees not to assert any and all moral rights it may have in or with respect to such rights.

e.      The Customer warrants that its use of the Software will not infringe any intellectual property right and/or proprietary right and/or other rights of any third party.

f.       Kudwa shall not have any liability or obligation whatsoever in respect of any intellectual property or proprietary rights claim to the extent that it results from or arises in connection with:

                                                 i.     the Customer’s breach of the Agreement;

                                               ii.     the use of the Software by any person or entity other than the Customer;

                                              iii.     the use of the Software other than in accordance with the Agreement;

                                              iv.     any failure by the Customer to implement changes, replacements or new releases as requested by Kudwa where the infringement would have been avoided by such changes, replacements or new releases;

                                                v.     any failure by the Customer to obtain any required or relevant license and/or pay any required or relevant fee; and/or

                                              vi.     the combination or use in combination of the Software with any other products, services and/or items not provided by Kudwa.

g.      If any intellectual property right claim and/or proprietary right claim is made or is reasonably likely to be made against Kudwa, the Customer shall defend, indemnify and hold harmless Kudwa in accordance with the indemnification provision set out in clause 7 herein.

3.      Ownership of the Software

a.      The Software is copyrighted and licensed, not sold, and is Kudwa’s confidential and unpublished property. Kudwa retains all ownership rights and other rights, title, interest and all IPR in the Software and its components including any releases, modifications, integrations, updates and upgrades thereto.

b.     The Agreement does not grant the Customer any IPR in and to the Software other than the right to the limited and restricted use of the Software.

c.      The Customer must retain and not alter or obfuscate copyright notices or proprietary legends on any copies of Software or associated media.

4.      Disclaimer of Warranties

a.      Kudwa warrants that it shall perform its obligations in good faith and with care and skill.

b.     THE SOFTWARE AND SUPPORT SERVICES AND OTHER SERVICES (IF ANY) ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW KUDWA DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Kudwa does not warrant that the Software use will be uninterrupted or error-free, or will yield any particular business or financial results; that data, dashboards, insights, forecasts, reports, or analysis will be accurate in all respects; that the Software will be free from defects, bugs and errors; and that the Software will operate without interruption.

5.      Limitation of Liability

In no event shall Kudwa or its affiliates be liable to the Customer for any loss or damages including loss of profits, revenue, time, opportunity and/or loss of access to data; whether direct, special, indirect, punitive, incidental, exemplary, consequential, or otherwise; whether in an action, based on breach of contract, tort (including negligence), product liability, strict liability, statute, law, equity or otherwise, arising under or related to the Agreement and/or resulting from the Customer’s access or use of the Software. The Customer hereby waives any and all such claims against Kudwa and its affiliates. Kudwa will not be liable to the Customer for any amount greater than the cumulative Subscription Fees with respect to the Software.

6.      Limitation on Actions

No action, regardless of form, relating to the Agreement, may be brought by either Party more than two years after the cause of action has accrued under applicable law, except that an action for non-payment of Kudwa’s invoices by the Customer may be brought at any time.

7.      Indemnification

The Customer agrees to indemnify, defend and hold harmless Kudwa and its affiliates against any liability, losses, claim, third-party claims, damages and expenses (including, without limitation, attorneys’ reasonable fees) arising from or relating to (i) the Customer’s violation of the Agreement; (ii) the Customer’s use of the Software; and/or (iii) the Customer’s infringement of intellectual property rights and/or any proprietary rights of any entity or person in connection with the Agreement and/or the use by the Customer, or any of its boards, officers, employees, third parties or otherwise of the Software.

8.      Termination

a.      Either Party may terminate the Agreement for convenience. If the Customer wants to terminate, it shall provide a fifteen (15) days prior written notice of termination and pay to Kudwa any outstanding Subscription Fees.

b.     In the event that the Customer is in breach of the Agreement and fails to comply with any part thereof, Kudwa may automatically terminate its License at the liability of the Customer and without waiving any of Kudwa’s rights under the Agreement or otherwise available at law or in equity.

9.      Data Protection

a.      Each Party shall comply with its respective obligations under the Personal Data Protection Law, Federal Decree Law No. 45 of 2021 to the extent that, in connection with the Agreement and the Support Services and other services (if any), a Party stores, processes and transfers any personal data to which data protection laws apply (“Personal Data”).

b.     The Customer acknowledges that Personal Data may be processed by Kudwa, either in its capacity as a Controller or as a Processor (as applicable), for the purpose of, or in connection with: (i) the provision of the License and/or the Support Services and other services (if any), (ii) applicable legal or regulatory requirements, (iii) requests and communications with competent authorities, (iv) internal and external audits, and/or (v) administrative, financial, accounting, risk analysis, and client relationship purposes (collectively the “Data Protection Purposes”). The Customer acknowledges that without the provision of the requested Personal Data, Kudwa may not be able to provide the License or the Support Services to the Customer or carry out any of the other Data Protection Purposes referenced herein.

c.      All Personal Data collected by Kudwa is subject to the terms of the Agreement and the privacy policy set out on Kudwa’s Website.

d.     The Customer confirms that it has obtained all legally required authorizations, consents and notices to disclose and/or transfer any Personal Data to Kudwa, including across borders.

e.      Kudwa may collect data from the Customer, third parties and the data subject directly. Kudwa may for the purposes of the collection, use, storage or processing thereof, transfer Customer and/or data subject’s personal information to: (i) Kudwa’s service providers (including providers of cloud technologies), (ii) other Kudwa entities and (iii) competent authorities. The processing and disclosure of Personal Data may involve the transfer of Personal Data to other jurisdictions cross border only insofar as such transfer is necessary for the performance of the Agreement.

10.   Notice

All notices made under the Agreement will be in writing and will be deemed made on first receipt. Each Party will send notices to the other Party at the address designated hereunder. Either Party may change or supplement its notice address by written notice.

Kudwa

Address:

Email:

Customer

Address:

Email:

11.   Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in whole or in part, it will be enforced to the maximum extent permissible so as to effectuate the intent of the Parties, and the remaining provisions will remain in full force and effect.

12.   Survivability

Clauses 2, 3, 4, 5, 6, 7, 9, 15, 16 and 17 contained herein shall survive the termination or expiration of the Agreement, and shall to the exception of clause 15 continue indefinitely.

13.   Counterparts

The Parties may execute the Agreement in one or more counterparts, each of which is an original, and all of which constitute only one Agreement between the Parties.

14.   Force Majeure

Each Party shall not be liable for any failure or delay to perform its obligations under the Agreement to the extent caused and/or contributed to by Force Majeure to the exclusion of the Customer’s payment obligation of the Subscription Fees and other fees.

15.   Confidentiality

a.      The Parties must (i) hold in confidence, and (ii) not, directly or indirectly, disclose and/or (iii) cause or permit to be disclosed to any person or entity not bound by the Agreement, any of the Confidential Information except as otherwise provided by the Agreement.

b.     Kudwa may disclose the Confidential Information to persons, e.g., employees, officers, professional advisors, subcontractors, agents et al., who have a need to receive such Confidential Information in order to carry out the purpose of the Agreement.

c.      Upon the expiration or termination of the Agreement, each Party must return to the other Party and/or destroy all Confidential Information or any part thereof, within 15 days of the receipt of a written notice from the other Party mandating the destruction or return of the Confidential Information.

d.     Exceptions. The Parties obligation of confidentiality shall be terminated as to all or part of the received information if the same can be shown to have been (a) previously known to the receiving Party other than by previous disclosure by or on behalf of the other Party; (b) lawfully and in good faith disclosed to a Party by a third party without restriction on further disclosure and which is not under obligation of confidentiality to the other Party; (c) generally available to the public through no breach by the Party of the provisions of the Agreement; or (d) independently developed by a Party without involvement of any personnel who have had access to information or technology received from the other Party.

e.      Compelled Disclosure. If required by law, a Party may disclose Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that (a) the Party shall notify the other Party of such requirement or order; (b) the Party shall limit the scope of such disclosure only to such portion of the Confidential Information that is legally required to be disclosed.

f.       The confidentiality obligations under the Agreement shall terminate 5 years from its termination or expiration.

16.   Injunctive Relief

The Customer acknowledges that Kudwa will suffer irreparable harm if the Customer breaches any one or more of its obligations set out in clauses 2, 3, 9 and 15 herein; and that monetary damages will be inadequate to compensate Kudwa for any breach; and Kudwa is entitled to injunctive relief to enforce the terms of clauses 2, 3, 9 and 15, in addition to any other remedies available to it at law or in equity.

17.   Marketing Reference

c.      The Customer agrees that Kudwa may reference the Customer’s status as a customer and may use the Customer’s logos in product literature, advertisements, articles, press releases, marketing materials, presentations and social media. Kudwa may also disclose for this purpose the value of the Agreement and a general description of the intended use of the Software.

d.     The Customer agrees to serve as a customer reference and provide a testimonial story in connection with promotion of the Software and Support Services.

e.      The Customer agrees to participate in mutually agreed upon Kudwa marketing activities, including participating in and providing quotes for inclusion in press releases, participating in print and television advertisements, speaking at Kudwa and industry events, and possibly acting as reference site for prospective Kudwa customers.

18. Kudwa reserves the right to change these Terms and Conditions anytime. If the Customer does not agree with these Terms and Conditions or the changes, it must stop using the web application. The information on the Website is subject to change without notice.

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