Termes et conditions

These Standard Terms and Conditions, together with the Term Sheet, set out the terms under which the Service Provider will provide Services to all Subscribers on the Application. The Subscriber’s right to use the Application is expressly conditioned on acceptance of these Terms and Conditions. In order to ensure that the Services are provided within a secure and legally compliant environment, the Subscriber agrees to be bound by these Terms and Conditions. The Subscriber agrees and acknowledges that by signing the Term Sheet with the Service Provider or by accessing the Application, whichever is earlier, the Subscriber confirms to the Service Provider that the Subscriber agrees to be bound by these Terms and Conditions.

Now wherefore the Parties agree as follows:

1. Definitions

1. In addition to the capitalised terms defined elsewhere in the Agreement, the following terms as used in the Agreement shall have the meanings stated below:

1. “Agreement” means these Terms and Conditions together with the Term Sheet, and any other agreement signed between the Parties towards the provision of the Services.
2. “Application” means Mergdata, the Service Provider’s flagship cloud-based web and mobile application software and technology platform on which Services are primarily provided.
3. “Confidential Information” means all information and documentation of a Party that: (a) should reasonably be recognised as confidential information of the disclosing Party regardless of format; and (b) all Subscriber Data. Confidential Information does not include any information or documentation that was: (a) already in the possession of the receiving Party without an obligation of confidentiality; (b) developed independently by the receiving Party, as demonstrated by the receiving Party, without violating the disclosing Party’s proprietary rights; (c) obtained from a source other than the disclosing Party without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorised disclosure by, though, or on behalf of the receiving Party).
4. “Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, utility models, domain names and all similar rights and, in each case whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing.
5. “Licence” means, unless otherwise provided for or agreed between the Parties, the non-exclusive and non-transferable right to access and use the Application granted by the Service Provider to the Subscriber under the Agreement.
6. “Party” means either the Service Provider or the Subscriber or, where the context permits, their respective officers, successors, agents or assigns.
7. “Personal Identifiable Information” as used in the Agreement means any information related to an identified or identifiable individual and includes the name, date of birth, email address, phone number, social security number or other government-issued identification number, location, photo, video or audio recordings, biometric records, credit card information, general financial details or an individual’s name in combination with any other of the elements, or any other information as defined under the applicable law or regulation as such.
8. “Pre-existing Materials” means software and related processes, instructions, methods, and techniques that have been previously developed by the Service Provider and, unless otherwise stated, include the Application or the Services provided under the Agreement.
9. “Services” means the software subscription services agreed to be provided by the Service Provider to the Subscriber as set out in the Term Sheet and the detailed cost breakdown that may be attached to the Term Sheet and may include provision of technical support, maintenance, backup, and recovery.
10. “Service Provider” means Farmerline Limited.
11. “Subscriber” means any person or entity who signs the Term Sheet with the Service Provider for provision of Services or who accesses the Application.
12. “Subscriber Data” means data and information, including Personally Identifiable Information, from the Subscriber uploaded, inputted, collected, used, processed, stored, or generated by the Subscriber on the Application or to the Service Provider as a reasonable consequence of the performance of the Agreement.
13. “Term Sheet” means the Mergdata Software as a Service (SaaS) Agreement Term Sheet signed between the Service Provider and each Subscriber.
14. “User Guide” means the manuals, user guides, or any other documentation from the Service Provider which accurately and completely describes all functions and features of the Application, including all subsequent revisions thereto.
15. “Virus” means any thing or device (including any software, code, file or programme) which may: (1) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (2) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (3) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices..
16. “Working Day” is any day which is not a Saturday, Sunday, or national public holiday in Ghana.

2. Headings of clauses or paragraphs are used only for reference and shall not affect interpretation of the actual wording in that clause or paragraph.
3. Reference to one gender includes reference to the other gender.
4. Words in the singular includes the plural and vice versa.

2. Scope of Subscription Services

1. The Service Provider grants to the Subscriber (including any Subscriber employee, contractor, or agent, or any other individual or entity authorised by the Subscriber) the Licence to access and use the Application as established, maintained, and modified by the Service Provider; and in conformity with the specifications, functions, descriptions, standards, and criteria set forth in the Agreement or such other applicable cost proposal. The Service Provider shall, where agreed, provide the necessary services for the use of the Application including technical support, maintenance, backup, and recovery.
2. Customisation: Where requested by the Subscriber and agreed to between the Parties, the Service Provider may also provide customised functional design of the Application in accordance with the specifications of the Subscriber.
3. User Guide: Where necessary for the implementation of the Services, the Service Provider shall provide the Subscriber with a User Guide which shall be understandable by a typical end-user and aimed at providing the Subscriber with sufficient instruction to become self-reliant with respect to access and full use of the Application. For this purpose, the User Guide will at least include written manuals, but any complementary material may be deployed to properly instruct the Subscriber in the access and use of the Application.
4. Changes in functionality: During the term of the Agreement as indicated the Term Sheet, the Service Provider shall not reduce or eliminate functionality in the Services knowingly, fraudulently, or intentionally without providing sufficient notice to the Subscriber.
5. Delays, Interruptions, and Errors: The Parties acknowledge that access to Services may be subject to delays, interruptions, errors, or other problems resulting from use of the internet or public electronic communications networks used by the Parties or other third parties. The Subscriber acknowledges that such risks are inherent in cloud services and that the Service Provider shall have no liability for any such delays, interruptions, errors, or other problems unless caused by the Service Provider.
6. Server Hosting, Software Maintenance, and Technical Support:

1. The Service Provider shall, where agreed, provide the necessary services for the use of the Application including technical support, maintenance, backup, and recovery.
2. To this end, the Service Provider shall provide the technical infrastructure required for the effective operation of the Application. This may include cloud-based data hosting (server maintenance) and software enhancement. System maintenance and software enhancement will be performed by the Service Provider upon request of the Subscriber.
3. The Service Provider shall deliver the backstopping and technical support in compliance with its Server Hosting, Software Maintenance and Technical Support Policy services necessary to operate and use the Application effectively. For this purpose, the Service Provider shall nominate one full-time staff member who will serve as a fixed point of contact responsible for backstopping and technical support.
4. The Service Provider shall attend to technical support requests by the Subscriber via telephone or email during normal business hours (between 8:00 AM and 5:00 PM Greenwich Mean Time) on Working Days. The Service Provider shall also use commercially reasonable endeavours to provide support on a 24/7-basis via email or online chat. “Technical Support” as used in this Clause includes corrections of any difficulty that inhibits the fluid use of the Application.
5. The Subscriber acknowledges and agrees that the Service Provider may conduct planned maintenance of the Application after giving at least a 48-hour notice to this effect to the Subscriber. Where the maintenance is unscheduled but urgent, the Service Provider shall endeavour to notify the Subscriber in advance within reasonable time.

7. Changes in Scope: The Subscriber may, upon written notice to the Service Provider, request changes to the scope of the Services. If the Subscriber requests an increase in the scope, the Subscriber shall notify the Service Provider, and, within five (5) Working Days (or such other mutually agreed period) after receiving the request, the Service Provider shall notify the Subscriber in writing whether the requested change has an associated cost impact. If both Parties consent to a proposed change in writing, the requested change shall be made by the Service Provider.

3. Restrictions on Use

1. The Subscriber shall use the Application in conformity with the user guide provided by the Service Provider and with the purpose and functions as set out in the Term Sheet or as may be required under these Terms and Conditions.
2. As a condition of use of the Application, the Subscriber (on its own behalf and on behalf of its authorised affiliates and authorised users) undertakes and agrees not to use the Application or Services nor permit them to be used:

1. for any purpose that is unlawful or illegal under any applicable law or prohibited by the Agreement, or to promote, aid or abet such activities;
2. to commit any act of fraud;
3. to distribute any Virus;
4. for purposes of promoting unsolicited advertising or sending spam;
5. to simulate communications from the Service Provider or another entity in order to collect identity information, authentication credentials, or other information (“phishing”);
6. in any manner that disrupts the operations, business, equipment, websites or systems of the Service Provider or any other person or entity (including any denial of service and similar attacks);
7. in any manner that harms or may endanger minors or any other person;
8. in connection with any service, use or purpose where the failure of the Services (or any part of it) may endanger the health or life of any person or cause damage or loss to any tangible property or the environment;
9. to represent or suggest that the Service Provider endorses any other business, product or service unless the Service Provider has separately and expressly agreed to do so in writing;
10. to gain unauthorised access to or use of any computers, data, systems, accounts or networks of any person;
11. in any manner which may impair any other person’s use of the Services or use of any other services provided by the Service Provider to any other person;
12. to attempt to circumvent any security controls or mechanisms;
13. to attempt to circumvent any password or user authentication methods of any person;
14. in any manner inconsistent with the Agreement or with the relevant user manual or other instructions provided by the Service Provider from time to time; or
15. in any manner which does not comply with the provisions relating to Intellectual Property Rights contained in the Agreement.

3. Unless otherwise provided in this Agreement or expressly permitted by the Service Provider, the Subscriber shall not:

1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application or User Guide or any information related to the Services in any form or media or by any means;
2. attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Application;
3. access all or any part of the Application or the Services in order to build a product or service which competes with the Application or Services;
4. use the Application or the Services to provide services to third parties; or
5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Application or the Services available to any third party except the authorised users.

4. Licence Fees and Billing

1. Licence Fees: The licence fees for the provision of the services under the Agreement shall be as agreed between the Parties as set out in the Term Sheet and the detailed cost breakdown that may be attached to the Term Sheet. Unless otherwise stated in the invoice or otherwise agreed between the Parties, the fees shall be exclusive of taxes, charges or such other contributions which the Service Provider is obliged to withhold under applicable tax laws.
2. Variation of Fees: The Service Provider reserves the right to review, modify or vary the subscription fees charged for the Services as set out in the Term Sheet or detailed cost breakdown. In the event of such fees variation, the Service Provider shall provide one (1) written notice to the Subscriber of its intent to vary fees. The notice shall state the intended revised fees.
3. Billing Procedure: The Service Provider shall submit an invoice for Services provided and the Subscriber shall pay the amount due within fourteen (14) days of receipt of the invoice.
4. Dispute on Invoice: Where the Subscriber disputes any of Service Provider’s invoice, the Subscriber shall send written notice of such dispute to the Service Provider within three (3) Working Days and the Service Provider may, upon written notice to the Subscriber, withhold the performance of the Services, including, without limitation, access to and use of the Application, until the dispute is resolved in accordance with the dispute resolution process stated in the Agreement.
5. Interest on Late Payments: Any delay in payment past the 14-day payment period following receipt of the invoice shall attract an annual interest rate of 2% above the Bank of Ghana prime rate as of the date such payment became due and payable.

5. Intellectual Property Rights

1. Unless otherwise provided in the Agreement or agreed between the Parties, the Service Provider shall at all times remain the sole and exclusive owner of all Intellectual Property Rights in the Application or Pre-existing Materials.
2. Any and all licenses, product warranties or service contracts provided by third parties in connection with any software, hardware or other software or services provided in the Application shall be delivered to the Subscriber for the benefit of the Subscriber.

6. Data Ownership and Proprietary Rights

1. Data Ownership: The Subscriber shall at all times remain the sole and exclusive owner of Subscriber Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Subscriber Data.
2. Limited Licence: The Service Provider is granted a limited license to Subscriber Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate and display Subscriber Data only to the extent necessary in the provision of the Services or as reasonably requested for in writing by the Service Provider.
3. Use of Subscriber Data: The Service Provider shall not use, access, reproduce, publish, sell, license, display or exploit (collectively, “Use”) any of the Subscriber’s Intellectual Property or proprietary information, including service marks, logos, graphics, documents and business information and plans that have been authored or pre-owned by the Subscriber unless the Subscriber has given its prior written approval.
4. Storage of Subscriber Data: The Subscriber Data shall be available to the Subscriber on request and in such format as the Subscriber shall reasonably request, up to three (3) years after the expiration of the Agreement. After that period, all the Subscriber Data shall be expunged from the Application by the Service Provider.
5. Pre-existing Materials: The Subscriber acknowledges that, in the course of performing the Services, the Service Provider may use the Pre-existing Materials and that such materials shall remain the sole and exclusive property of the Service Provider.
6. No Licence: Except as otherwise agreed between the Parties or provided in the Agreement, no license is granted by either Party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in the Agreement shall be construed to grant to either Party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
7. The provisions of this Clause shall survive the termination or expiry of the Agreement.

7. Confidentiality

1. Exchange of Confidential Information: The Parties acknowledge that each Party may be exposed to or acquire communication or data of the other Party that is confidential, privileged communication not intended to be disclosed to third parties.
2. Incorporation of prior Non-Disclosure Agreement: Where the Parties have entered into a Mutual Non-disclosure and Confidentiality Agreement, the terms of that agreement shall be deemed incorporated by reference into the Agreement. Where the term of one of either the Agreement or the mutual non-disclosure agreement expires before the other, the term of the shorter agreement shall automatically extend to coincide with the term of the longer agreement in order to give business efficacy to the non-disclosure obligations of the Parties.
3. Non-disclosure of Confidential Information: The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a Party who have a need to know in connection with the Agreement or to use such Confidential Information for the purposes of providing the Services under the Agreement and are bound by a confidentiality agreement with the receiving Party. The Parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
4. Cooperation to Prevent Disclosure of Confidential Information: Each Party shall use its best efforts to assist the other Party in identifying and preventing any unauthorised use or disclosure of any Confidential Information. Without limiting the foregoing, each Party shall advise the other Party immediately in the event either Party learns of or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of the Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
5. Equitable Relief for Breach: The Parties agree and acknowledge that money damages may not be a sufficient remedy for any breach of confidentiality and non-disclosure obligations under the Agreement and that a disclosing Party may be entitled to the granting of equitable relief, including, without limitation, injunction and specific performance, in the event of any such breach, in addition to all other remedies which may be available to such disclosing Party at law or in equity.
6. Return or Deletion of Confidential Information: Upon termination or expiry of the Agreement or at any time on receipt of a written request from the disclosing Party, the receiving Party shall return to the Disclosing Party (and, where it is not possible to return, shall delete or destroy) all documents and materials containing Confidential Information and shall certify to the disclosing Party in writing that it has complied with the provisions of this Clause. In the case of the Service Provider, this Clause shall not apply to the extent that:

1. any Confidential Information has been incorporated into any internal records or reports of the Service Provider or is contained in any electronic, archived or backup files; or
2. the Service Provider is obliged to retain records for the purposes of complying with its internal governance procedures or its internal document retention policies and procedures or with the requirements of any relevant regulatory authority or relevant laws or government obligations applicable to the Service Provider, provided that to the extent that any Confidential Information is so retained, the Service Provider shall continue to be bound by the confidentiality and non-disclosure obligations contained in the Agreement.

7. The provisions of this Clause shall survive the termination of the Agreement.

8. Data Protection and Information Security

1. The Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organisational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (c) protect against unauthorised disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of the Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of the Service Provider, if any, comply with all of the foregoing.
2. The Service Provider shall host all collected data in an encrypted form on a secure server maintaining security features and policies for safeguarding the security and privacy of Subscriber Data from unauthorized access or improper use.
3. Without limiting the Parties’ non-disclosure and confidentiality obligations under the Agreement, both Parties shall comply with all applicable data protection legislation.
4. Where the context applies, and especially where the Subscriber Data contains Personal Identifiable Information, the Parties shall comply with the applicable data protection laws and regulations in the processing of such information. Unless otherwise prohibited by the applicable data protection law, the processing by the Receiving Party of such information shall only be for the purposes for which such information was disclosed. “Processing” as used in this section includes collection, alteration, transfer, use, disclosure, deletion, or any other such conduct as defined under the applicable law or regulation as processing.
5. The Subscriber shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Subscriber Data (including Personally Identifiable Information) to the Service Provider for the duration and purposes of the Agreement so that the Service Provider may lawfully use, process and transfer the Subscriber Data in accordance with the Agreement on the Subscriber’s behalf.

        

9. Indemnity

1. The Subscriber shall defend, indemnify and hold harmless the Service Provider against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation, court costs and reasonable legal fees) arising out of or in connection with the Subscriber’s use of the Services or the Application, provided that:

1. the Subscriber is given prompt notice of any such claim;
2. the Service Provider provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and
3. where requested, the Subscriber is given sole authority to defend or settle the claim.

2. The Service Provider shall, subject to Clause 9.5 below, defend the Subscriber against any claim that the Services or the Application infringes any copyright, trademark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:

1. the Service Provider is given prompt notice of any such claim;
2. the Subscriber provides reasonable co-operation to the Service Provider in the defence and settlement of such claim, at the Service Provider’s expense; and
3. where requested, the Service Provider is given sole authority to defend or settle the claim.

3. In the defence or settlement of any claim, the Service Provider may procure the right for the Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement as soon as possible or, in any event, by providing three (3) Working Days’ notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.
4. In no event shall the Service Provider, its employees, agents, and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:

1. a modification of the Services or the Application by anyone other than the Service Provider;
2. the Subscriber’s use of the Services or the Application in a manner contrary to the instructions given to the Subscriber by the Service Provider; or
3. the Subscriber’s use of the Services or the Application after notice of the alleged or actual infringement from the Service Provider or any appropriate authority.

5. The foregoing states the Subscriber’s sole and exclusive rights and remedies, and the Service Provider’s entire obligations and liability (including that of the Service Provider’s employees and sub-contractors) for infringement of any patent, copyright, trademark, database right or right of confidentiality.

10. Representations and Warranties

1. By The Service Provider: The Service Provider hereby represents and warrants to the Subscriber that:

1. It has the necessary rights and authority to execute and deliver the Services and perform its obligations under the Agreement and to grant the rights granted under the Agreement to the Subscriber;
2. The Services provided by the Service Provider under the Agreement, including the Application and all intellectual property provided hereunder, are original to the Service Provider or its subcontractors or partners;
3. Throughout the term of the Agreement the Application will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Term Sheet or detailed cost breakdown and the User Guide;
4. It will use its reasonable efforts to ensure that no Viruses are introduced into Subscriber’s computing and network environment by the Services. Where the Services are misused by any unauthorised persons on Service Provider’s end, the Service Provider shall inform the Subscriber within three (3) Working Days of becoming aware of such misuse. Where the Service Provider transfers a Virus to Subscriber through the Services, it shall review and agree to reimburse Subscriber on the actual cost which the Subscriber can support with evidence as having been incurred by the Subscriber to remove or recover from the Virus, including the costs of persons employed by Subscriber;
5. The Application will be maintained to ensure that, where possible, it is free of any mechanism which may disable the Application and that the Service Provider shall use reasonable efforts to ensure that no loss of Subscriber Data will result from such items if present in the Application;
6. The Services will be performed in a professional manner by qualified representatives of the Service Provider who are fluent in written and spoken English.
7. The Service Provider shall comply with all applicable laws and regulations in the performance of the Services.

2. Exceptions:

1. Except as expressly stated in the Agreement, there are no warranties, expressed or implied, including, but not limited to, the implied warranties of fitness for a particular purpose or of merchantability.
2. The Subscriber acknowledges and agrees that because of the nature of Application, information technology systems, telecommunications systems and the internet, no representation or warranty is given or has been given to the effect that the Application will be error-free or will run without interruption, or that every bug, virus or deficiency can or will be rectified;

3. The Service Provider’s warranties and representations are subject to the limitations of liability set out in the Agreement and shall not apply to the extent that any error in the Services arises as a result of:

1. incorrect operation or use of the Services by the Subscriber, or any the Subscriber’s authorised affiliates or authorised users (including any failure to follow the User Guide or failure to meet minimum specifications);
2. use of any of the Services other than for the purposes for which it is intended;
3. use of the Application or any aspect of the Services with other software or services or on equipment with which it is incompatible;
4. any act by any third party (including hacking or the introduction of any virus or malicious code);
5. any modification of the Services (other than that undertaken by the Service Provider or at its direction); or
6. any breach of the Agreement by the Subscriber (or by any of its officers, employees, authorised affiliates or authorised users).

4. The Subscriber acknowledges that no liability or obligation is accepted by the Service Provider (howsoever arising whether under contract, tort, in negligence or otherwise) to the effect that:

1. the Services shall meet the Subscriber’s individual needs, whether or not such needs have been communicated to the Service Provider;
2. the operation of the Services shall not be subject to minor errors or defects; or
3. the Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the description.

5. By The Subscriber: The Subscriber hereby represents and warrants to the Service Provider that:

1. The Subscriber shall provide the Service Provider with all necessary cooperation and access to all necessary information required for the performance of the Services.
2. The Subscriber shall ensure that its authorised affiliates or authorised users use the Application or the Services in accordance with the terms of the Agreement and shall be responsible for any breach of the Agreement by such authorised affiliates or users.
3. The Subscriber shall carry out all Subscriber obligations under the Agreement.
4. The Subscriber shall comply with all applicable laws and regulations in with respect to its activities under the Agreement.

11. Limitation of Liability

1. This Clause sets out the entire financial liability of the Service Provider (including any liability for the acts or omissions of its employees and sub-contractors) to the Subscriber in respect of:

1. any breach of the Agreement;
2. any use made by the Subscriber of the Services or the Application or any part of them; and
3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

2. Except as otherwise expressly stated in the Agreement:

1. the Subscriber assumes sole responsibility for results obtained from the use of the Application or the Services by the Subscriber, and for conclusions drawn from such use. The Service Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Service Provider by the Subscriber in connection with the Services, or any actions taken by the Service Provider at the Subscriber's direction;
2. all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
3. the Application and the Services are provided to the Subscriber on an “as is” basis.

3. Notwithstanding the above, nothing in the Agreement excludes either Party’s liability:

1. for death or personal injury caused by that Party’s negligence; or
2. for fraud or fraudulent misrepresentation.

4. The limitations of liability in this Clause shall not apply in the case of liability of the Subscriber, to liability for:

1. damages for any breach by the Subscriber of its payment obligations; and
2. any breach by the Subscriber of its confidentiality and non-disclosure obligations or its data protection, privacy, and information security obligations under the Agreement.

5. The limitations of liability in this Clause shall not apply in the case of liability of the Service Provider, to liability for:

1. any breach of any applicable regulatory requirement by the Service Provider which directly or indirectly results in the imposition of any fine or sanction on the Subscriber or the Subscriber otherwise incurring any liability; or
2. any breach by the Service Provider or any of its subcontractors of its confidentiality and non-disclosure obligations or its data protection, privacy, and information security obligations under the Agreement.

6. Subject to Clauses 11.2, 11.3 and 11.5 above:

1. the Service Provider shall not in any circumstances be liable, whether in contract, tort (including without limitation for breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent) or otherwise for any special, indirect, consequential loss, costs, damages, charges, or expenses suffered by the other Party; and
2. the total aggregate liability of the Service Provider, whether in tort, contract or otherwise, shall not exceed the annual subscription fees paid or payable to the Service Provider within the 12-month period immediately preceding the date on which such liability arose.

7. The provisions of this Clause shall survive termination or expiry of the Agreement.

12. Term and Termination

1. Term: The initial term of the Agreement shall be twelve (12) months, or such other period agreed by the Parties in the Term Sheet, commencing from the date the Parties sign the Term Sheet.
2. Automatic Renewal: Upon the expiration of the initial term, the Agreement shall automatically renew for further periods of twelve (12) months until terminated by either Party in accordance with the Agreement.
3. Termination for Cause: Where a party breaches the Agreement, the innocent Party may write to the defaulting Party specifying such breach and requesting the breach to be cured. Where the breach remains uncured or there are no diligent steps towards curing the breach within thirty (30) days of the notice to cure, the innocent Party may terminate the Agreement.
4. Termination without Cause: Either Party may terminate the Agreement by giving thirty (30) days’ written notice to the other Party of such intent to terminate.
5. Accrued Rights and Obligations upon Termination: Upon the termination of the Agreement whether with or without cause, the Parties shall have the right to enforce all rights or obligations that might have accrued prior to the termination. To this end, the Subscriber shall pay to the Service Provider all amounts due and payable under the Agreement, if any, and the Service Provider shall pay to the Subscriber all amounts due and payable, including but not limited to, any unused prepaid Subscription Fees for the Service that was to be provided after the effective date of termination.
6. Return of Subscriber Data: Upon the termination of the Agreement, the Service Provider shall, where requested by the Subscriber, within three (3) Working Days of receipt of such request and subject to reasonable conditions or contingencies (including but not limited to the prior payment of any fees due to the Service Provider or such other charges necessary), provide the Subscriber with a final extract of the Subscriber Data in the format specified by the Subscriber. The Service Provider shall certify to the Subscriber the destruction of any Subscriber Data within the possession or control of the Service Provider. Such destruction shall occur only after the Subscriber Data has been returned to the Subscriber. This Section shall survive the termination of the Agreement.

13. Force Majeure

1. “Force Majeure” shall mean any unforeseeable, insurmountable or exceptional situation or event (such as floods, earthquakes, wars, insurrections, pandemics, and other similar events) beyond the control of the Parties which prevents either of them from totally or partially performing any of their obligations under the Agreement and which was not due to error or negligence on their part or on the part of a subcontractor and could not have been avoided by the exercise of due diligence. Labour disputes, strikes or financial problems cannot be invoked as force majeure unless they stem directly from a relevant case of force majeure.
2. Without prejudice to the provisions above, if either Party is faced with force majeure, it shall notify the other Party without delay stating the nature, likely duration, and foreseeable effects of the force majeure event. 
3. No Party shall be held in breach of its contractual obligations under the Agreement if it has been prevented from performing such obligations by reason of force majeure. Where a party is unable to perform its contractual obligations owing to force majeure, it shall have the right to remuneration only for tasks actually executed, where applicable.
4. The Parties shall take the necessary measures to reduce the damage arising from a force majeure event to the best possible minimum.
5. If the performance by either Party of any of its obligations under the Agreement is prevented or delayed by force majeure for a continuous period in excess of ninety (90) days, the other Party shall be entitled to terminate the Agreement by giving written notice to that effect to the Party affected by the force majeure.
6. The performance of the Agreement shall, unless terminated in accordance with the Agreement, resume upon the immediate abatement of the force majeure event.

14. Governing Law and Dispute Resolution

1. The Agreement shall be governed by and shall operate and be construed under the laws of the Republic of Ghana.
2. Any dispute arising out of or in connection with the Agreement shall first be amicably settled by the Parties through negotiations. Where such attempts at amicable settlement fail, the aggrieved Party reserves the right to have the dispute resolved by a court of competent jurisdiction.

15. General Provisions

1. No Agency: Nothing in the Agreement shall be construed to make the Parties representatives or agents of each other whether before, during, or after execution of the Agreement. No party shall make any representations to the contrary to a third party. The Agreement is not intended to create any employer-employee or agency relationship between the Parties. The Parties are independent of each other and, for the purposes of the financing arrangement under the Agreement, shall operate as independent contractors.
2. Entirety of Agreement: Except where the context admits, the Agreement contains the entire understanding between the Parties hereto and the Parties shall not rely on any condition, warranty, or representation other than as expressly stated in the Agreement. 
3. Superseding Agreement: Unless otherwise agreed between the Parties, the Agreement supersedes and replaces any other prior agreement between the parties, whether oral or written or implied by them.
4. Severability: The invalidity, unenforceability, or illegality of a provision in the Agreement shall not affect the validity, enforceability, or legality of the other provisions in the Agreement.
5. Modifications and Amendments: No modification or amendment of the Agreement shall be effective unless it is put into writing and agreed upon between the parties.
6. Delay in Enforcement: No failure or delay by either party in exercising any right, power or privilege provided in the Agreement shall operate as a waiver. A single or partial exercise of such right, power, or privilege shall not prevent the Party from further exercise of them or of any other right, power, or privilege provided for in the Agreement.
7. Assignment: The Service Provider may transfer or assign its rights and obligations under the Agreement to another organisation, provided such will not affect the rights of the Subscriber or the Service Provider’s obligations under the Agreement. The Subscriber may only transfer its rights or its obligations under the Agreement to another person or entity upon the prior written approval of the Service Provider.
8. No Third-party Beneficiaries: Except where the context admits, the Agreement is not intended to, nor shall it create any rights, claims, or benefits enforceable by any person who is not a party to the Agreement.  No consent of any person who is not a party to the Agreement shall be required to amend any term of the Agreement or release, settle or compromise any liability under it.
9. Counterparts: The Agreement may be signed in one or more counterparts, each of which will be deemed an original but all which, when taken together, shall constitute one and the same document. Signatures provided by electronic means shall create a valid and binding obligation on the part of the signing Party with the same force and effect as if such signatures were an original thereof.