Terms of Service

EFFECTIVE DATE: 1 AUGUST 2025

INTRODUCTION

This Terms of Service (or the ‘Agreement’) is a binding contract between the Client and Africa’s Talking, governing the use of our Services.

When we refer to “AT” or use “we”, “us” or “our”, we are referring to the Africastalking (K) Limited and its Affiliates.

When we refer to “Client”, “you”, or “your”, we mean:

• the individual person who has entered into this Agreement with AT in their own capacity (such as a developer or sole user); or
• the legal entity (such as a company, organisation, or sole proprietor) that has entered into this Agreement with AT, including all individuals authorised by that entity to access or use the Services on its behalf (“Authorised Users”), as described in Clause 1.2.

If you are accessing the Services as an individual on behalf of a Client entity, you represent and warrant that:

• you are an Authorised User;
• you have been validly invited or permitted by the Client to use the Services; and
• you have the authority to bind the Client to this Agreement (or, if not, that the Client has already agreed to be bound).

AT and the Client are each referred to in this Agreement as a “Party” and collectively as the “Parties”.

Unless otherwise specified in context, capitalised terms are defined in the Definitions section located at the end of this Agreement.

1. ACCESS AND USE OF SERVICES

1.1 Access to Services

To use the Services, the Client must create a User Account. The Client is solely responsible for all activities that occur under its User Account, including all API requests, which shall be deemed to have been sent and authorised by the Client.

1.2. Authorised Users 

The Client may designate Authorised Users, including as its employees, contractors, Affiliates, or other representatives, to access the Services on its behalf. The Client acknowledges and agrees that:

1.2.1 each Authorised User must create their own individual AT account to access the Services;

1.2.2 the Client must ensure each Authorised User is aware of and complies with this Agreement;

1.2.3 the Client remains fully responsible and liable for all acts and omissions of its Authorised Users as if they were the acts and omissions of the Client itself;

1.2.4 any breach of this Agreement by an Authorised User shall be deemed a breach by the Client;

1.2.5 the Client must maintain accurate records of all Authorised Users and their permission levels; and

1.2.6 the Client shall promptly revoke access for any Authorised User whose authorisation ends or who no longer requires access to the Services.

1.3 Access Rights

Subject to the terms of this Agreement, AT grants the Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence and right to access and use the Services solely for lawful internal business operations for the term. This license is not sublicensable or extendable to third parties without AT’s explicit written authorisation. The Client may permit individuals to access the Services as Authorised Users only in accordance with Clause 1.2.

1.4 Permitted Use

The Client shall use the Services only for lawful purposes, and in compliance with this Agreement, the Acceptable Use Policy, the Documentation, a Service Confirmation, and Applicable Law.

1.5 Service Activation

1.5.1 Creating a User Account grants the Client access to the AT platform but does not automatically activate any paid Services. To use specific Services, the Client shall activate a Service through the Dashboard using the self-service options.

1.5.2 Service activation shall be deemed confirmed upon:

(a) the Client’s acceptance of a Service activation and a Service Confirmation is shared on the Dashboard, or (b) first use of the activated Service, whichever comes first.

1.5.3 Upon Service activation applicable fees begin accruing, Service-specific terms and SLAs apply and the Client shall maintain sufficient Wallet balance for the activated Services.

1.5.4 The Client may activate additional Services at any time subject to:

(a) acceptance of any additional Service-specific terms; (b) payment of applicable setup fees; and (c) compliance with technical prerequisites.

1.5.5 When activating Services that include dedicated resources (shortcodes, USSD codes, phone numbers), the Client shall declare whether:

(a) the Client is the Beneficial Owner (using resources for its own business); or (b) a third party is the Beneficial Owner (Client is acting as technical service provider).

Where a third party is the Beneficial Owner, the Client:

1. shall provide the Beneficial Owner's full legal name, registration details, and contact information during the Service request;
2. may be required to upload written authorisation from the Beneficial Owner; and
3. acknowledges that the Beneficial Owner retains ultimate rights to the resource and acknowledges that AT may be required to transfer resource control to the Beneficial Owner if the service relationship ends.

1.6 Test Accounts

AT may provide a sandbox or a test account strictly for non-productive testing, demonstration and evaluation purposes of our Services. The Client shall not connect the test account to any productive IT environment, or use the test account for any commercial, operational, or public-facing purposes. The Client shall comply with all specific instructions, protocols, and limitations provided. Breach of these conditions may result in immediate account revocation and potential liability for damages. We reserve the right to modify or withdraw access to the test account at any time. Use of the test services is at the Client’s own risk, and we shall not be liable for any interruptions or for any data loss or damage.

For our Voice product, we offer a two (2) week test period to allow the Client to address any technical complexities in connecting to our Services. This test period begins on the date the Client’s test account is activated.

1.7 Suspension of Services

1.7.1 AT may suspend the Services with immediate effect and will provide written notice within twenty-four (24) hours after suspension where:

(a) the Wallet balance is negative or otherwise insufficient to cover fees;

(b) unusual, excessive, or potentially fraudulent traffic is detected;

(c) any use of the Services threatens the security, integrity, or availability of the Services, AT’s systems, or those of a Network Provider;

(d) AT is required to do so by a Network Provider, Regulator, or law-enforcement authority;

(e) the Client or an Authorised User breaches the Acceptable Use Policy in a manner that could cause immediate harm to AT, a Network Provider, or any third party;

(f) AT reasonably believes suspension is necessary to prevent an imminent violation of Applicable Law; or

(g) emergency maintenance or security patches must be deployed.

1.7.2 For all other material breaches of this Agreement, AT shall give the Client written notice before suspension, specifying:

(a) the nature of the breach;

(b) the remedial action required; and

(c) the timeline for compliance (which shall be at least forty-eight (48) hours unless circumstances reasonably require a shorter period).

1.7.3 Every suspension notice, whether issued before or after suspension. shall state the reason for suspension and the steps required for restoration. AT will resume the Services once the cause of suspension has been satisfactorily remedied. Where applicable, reconnection fees or other charges may be deducted directly from the Wallet in accordance with Clause 3 (Payment Terms). AT may terminate this Agreement if the Client fails to remedy the cause within thirty (30) days, or such shorter period as may be set out in the notice.

1.7.4 Provided AT acts reasonably and in good faith, AT shall not be liable for losses arising from a suspension effected in accordance with this Clause 1.8. The Client remains liable for all charges incurred up to the time of suspension.

2. GENERAL OBLIGATIONS OF THE CLIENT

2.1 Legal Capacity

The Client represents and warrants that it has the legal capacity and authority to enter into this Agreement, which is a binding and enforceable. Where the Client is a legal entity, the individual accepting this Agreement represents and warrants that they have authority to bind that entity. The Client further warrants that it has authority to designate Authorised Users and shall ensure that each Authorised User acts within the scope of such authorisation.

2.2 Security Responsibilities

The Client is solely responsible for ensuring the security of its systems and shall implement and maintain industry standard security measures to prevent unauthorised access to or use of the Services and promptly notify AT of such incidents. The Client warrant and represent that it shall:

2.2.1 maintain two-factor authentication (2FA) for its User Account;

2.2.2 keep its password, API Key and User Account information confidential and secure and shall immediately notify us if the Client become aware or reasonably suspect that a password or API Key has been compromised;

2.2.3 ensure only Authorised Users access the Services through the Client's User Account, that each Authorised User complies with this Agreement, and that no unauthorised sharing of credentials occurs between Authorised Users;

2.2.4 secure its internal local area network and related security setups against cyber threats such as hackers and malicious intrusion. The Client shall ensure that its local networks are free from any viruses, Trojan horses, worms and other malicious software at all times;

2.2.5 implement and maintain appropriate disaster recovery and business continuity in respect of its equipment. The Client shall also ensure that there are adequate back up arrangements for all Client Data which shall be tested and reviewed periodically;

2.2.6 conduct regular security audits of its systems and promptly address any vulnerabilities identified;

2.2.7 promptly install all security updates and patches for any software or systems used in connection with the Services; and

2.2.8 notify us of any security incidents or breaches within twenty-four (24) hours of discovery.

2.3 Cooperation

The Client shall promptly comply with requests, directions or orders from AT, a Network Provider or a Regulator that is necessary to:

2.3.1 ensure conformity of a Service to any requirement or determination,

2.3.2 enable AT to provide support, maintenance, diagnostics, or upgrades; or

2.3.3 ensure compliance with the Agreement.

2.4 Liability for Content

The Client is solely responsible for all content transmitted through the Services by it or any of its Authorised Users. AT does not control or monitor such content. The Client acknowledges that content created or transmitted by any Authorised User shall be deemed to be content of the Client. To the fullest extent permitted by law. To the fullest extent permitted by law, we exclude all liability for any issues or claims arising from the content, including but not limited to errors, viruses, or security breaches that may occur, and any claims arising due to the use or misuse of such content, except in cases of our gross negligence or wilful misconduct. The Client agrees to indemnify and hold AT harmless from any third-party claims arising from its content.

2.5 Client Information

The Client agrees to provide information required for the Service provision, and to promptly update this information upon request including:

2.5.1 identification documentation for legal and regulatory compliance;

2.5.2 a data protection authority letter;

2.5.3 relevant permits, licences or authorisation for Service use; and

2.5.4 any other information reasonably requested by us, a Network Provider or Regulator.

The Client warrants that all information provided shall be true, accurate, and complete, and the Client agree to update such information promptly if it changes.

2.6 Third-Party Services and Applications

The Client may choose to integrate with third-party web services, software and/or application when accessing our Services. The Client is solely responsible for these integrations, including compliance with their terms and obtaining necessary licenses and consents, maintaining and promptly updating any third-party services or applications integrated with our Services to ensure continued compatibility and security. AT shall not be liable for any issues caused by these third-party services, including compatibility problems, updates, errors, or bugs arising from the Client’s use. The Client shall indemnify, defend, and hold AT harmless from and against any third-party claims, losses, damages, liabilities, and expenses (including reasonable attorneys' fees) arising from malfunctions, defects, or incompatibilities of any equipment or software the Client provides, or uses in connection with the Services.

2.7 Compliance with Laws 

The Client warrant that it shall:

2.7.1 obtain and maintain all necessary permits, consents, rights, authorisations, or certifications required for its use of the Services, and provide proof of compliance upon request;

2.7.2 comply with applicable Data Protection laws when handling or processing any personal data in connection with the Services;

2.7.3 ensure that its use of the Service does not violate any legal obligations or infringe on any rights of third parties; and

2.7.4 provide true, accurate and complete information upon request.

3. PAYMENT TERMS

3.1 Fees

Unless otherwise agreed in writing, all fees are payable in advance. The Client shall pay all applicable Service fees, maintenance fees, one-time setup charges, and any other charges that apply under this Agreement. All such fees will be automatically deducted from the Client’s Wallet balance. Such payments shall be without any set-off, counterclaim, deduction or withholding, except for any mandatory deduction or withholding of Taxes as required by law.

3.2 Wallet Top-Up

The Client shall maintain a positive Wallet balance at all times. Wallet top-ups may be made using any available method as listed on AT’s Website or in the Dashboard. Top-ups will be deposited in the currency selected during the User Account creation. The exchange rate used for top-ups in a currency different from the User Account currency will be the prevailing market rate at the time of the transaction, which may be subject to fluctuations.

3.3 Recurring Fees Deduction Schedule

3.3.1 Recurring fees - including, without limitation, maintenance charges for short codes, USSD codes, Voice numbers or other numbering resources - will be deducted from the Wallet on the first (1st) day of each calendar month.

3.3.2 If the Client wishes to cancel a recurring Service and avoid the next monthly charge, the Client must submit a written cancellation request no later than the nineteenth (19th) day of the preceding month.

3.3.3 If, by the first (1st) day of the month, the Wallet balance is insufficient to cover the recurring fee, AT shall deactivate the affected Service immediately. If the Wallet remains insufficient by the twentieth (20th) day of that month, AT will issue a written notice that the relevant numbering resource or Service will be disconnected from the User Account, and may be reallocated or returned to a Network Provider on the last day of that month.

3.3.4 Reconnection of any suspended or disconnected Service is subject to:

(a) payment of all outstanding fees,

(b) restoration of the Wallet to a positive balance, and

(c) payment of any applicable reconnection or new setup fees as set out in AT’s Pricing Schedule or communicated in writing at the time of reinstatement.

3.4 Security Deposit

AT may request a security deposit to cover potential regulatory fines, penalties, or unpaid charges arising from breach of the Acceptable Use Policy or other material terms. If any portion of the deposit is used, AT may deduct the replenishment amount from the Wallet or request immediate top-up. Failure to comply may result in suspension under Clause 1.8. AT reserves the right to adjust the security deposit based on periodic reviews of the Client’s adherence to the Acceptable Use Policy and any changes in regulatory standards or penalties that may arise.

3.4 Taxes 

Unless stated otherwise, all fees are exclusive of Taxes. To claim a tax exemption or a specific withholding amount, the Client shall provide us with a valid tax certificate, receipt, or other official document from the relevant tax authority to support its position. Upon request, the Client agrees to provide AT with its tax identification information needed for AT’s tax compliance purposes.

3.5 Price Changes

AT reserve the right to change our fees under the following conditions:

3.5.1 Changes due to adjustments in rates or charges by Network Providers, Regulators, or governmental actions: We will notify the Client of the new prices and the effective date as soon as we are informed; and

3.5.2 All other fee changes: We will provide at least thirty (30) days' prior written notice before the new prices take effect.

3.5.3 Notice will be sent via email to the User Account’s linked email address. The Client's continued use of Services after the effective date constitutes acceptance of the new pricing. The Client may terminate affected Services before new prices take effect by following the termination procedures in Clause 4.

4. TERM AND TERMINATION

4.1 Term

4.1.1 This Agreement becomes effective:

(a) for new Clients: upon creation of User Account on the Dashboard; and

(b) for existing Clients: as of 1 August 2025.

4.1.2 This Agreement continues until terminated in accordance with this Clause 4.

4.1.3 Service-specific terms (including pricing, service levels, and technical requirements) only apply to a Service that the Client has activated in accordance with Clause 1.5.

4.1.4 Each Service activated shall continue until:

(a) terminated in accordance with the Service-specific terms;

(b) terminated by either Party under Clause 4.2; or

(c) this Agreement is terminated in its entirety.

4.2 Termination for Convenience

Either Party may terminate the Agreement for any reason on thirty (30) days’ prior written notice.

4.3 Termination for Material Breach

Either Party may terminate immediately by written notice if the other Party materially breaches the Agreement and:

4.3.1 the breach is not capable of cure; or

4.3.2 the breach is capable of cure but remains uncured fourteen (14) days after written notice specifying the breach and required cure.

4.4 Additional Termination Rights

AT may also terminate immediately by written notice if:

4.4.1 required by a Regulator, Network Provider, or Applicable Law; or

4.4.2 the Client becomes insolvent, enters administration, or ceases business.

4.4 Effect of Expiration or Termination

Upon the effective date of termination or expiration of this Agreement:

4.4.1 AT will deactivate access to the Services and all licences will cease;

4.4.2 AT will deduct any outstanding fees from the Wallet; if the Wallet is insufficient, the Client shall pay the balance within seven (7) days, after which interest accrues at the statutory maximum

4.4.3 within thirty (30) days each Party shall return or delete the other Party’s Confidential Information and Client Data, except where retention is required by law; and

4.4.4 provided no fees remain due, AT will refund any unused Wallet balance, and any security deposit, less bank charges and mandatory taxes.

The termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the effective termination date, including the right to claim damages in respect of any breach of the Agreement which existed at or before the effective termination date.

4.5 Survival

Any clauses that are intended to survive termination of this Agreement shall remain in effect regardless of the cause of termination.

5. CONFIDENTIALITY

5.1 Definition

“Confidential Information” means any non-public information disclosed by one Party to the other in connection with this Agreement, whether orally, visually, in writing, or by access to systems, and whether marked as confidential or not, including but not limited to:

5.1.1 API keys and authentication credentials,

5.1.2 technical specifications and documentation,

5.1.3 Client Data, business models, or commercial strategies, and

5.1.4 the existence and content of any Service Confirmation, security assessments, or Service Confirmations.

5.2 Scope

Each Party shall keep all Confidential Information strictly confidential and shall not disclose it to any third party without the prior written consent of the disclosing Party, except where required by Applicable Law or a valid court or regulatory order, or as expressly permitted under this Agreement.

Confidential Information excludes information that:

5.2.1 is or becomes publicly available through no breach of this Agreement;

5.2.1 is independently developed by the receiving Party without use of the disclosing Party’s information; or

5.2.1 is rightfully received from a third party without restriction and without breach of any duty.

5.3 Confidentiality Obligations

The receiving Party shall:

5.3.1 use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement;

5.3.2 limit disclosure of Confidential Information to its employees, Affiliates, Authorised Users, or subcontractors who have a legitimate need to know for the permitted purpose, and are bound by equivalent confidentiality obligations; and

5.3.3 use at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care.

5.3 Duration and Survival

These confidentiality obligations shall remain in effect during the term of the Agreement and shall survive for five (5) years after its expiration or termination. For Confidential Information constituting trade secrets or Client Data, the obligations shall survive indefinitely for so long as such information remains confidential.

6. INTELLECTUAL PROPERTY

6.1 AT’s Intellectual Property

AT retains all right, title, and interest in and to its Intellectual Property, including but not limited to:

6.1.1 the Services, including all software, technology, platforms, APIs, documentation, user interfaces, and any associated trademarks, logos, and brand elements;

6.1.2 all pre-existing works, inventions, discoveries, creations, improvements, trade secrets, know-how, and other intellectual property rights owned or licenced by AT before or during the term of this Agreement; and

6.1.3 all modifications, enhancements, or derivative works of AT’s Intellectual Property developed by AT or its agents whether developed independently or in response to Client requests.

Nothing in this Agreement grants the Client rights to, AT’s Intellectual Property except the limited access and use rights granted under Clause 2.2.

6.2 Client’s Intellectual Property

The Client retains all right, title, and interest in and to its own pre-existing Intellectual Property and developed independently, and nothing in this Agreement shall be construed to transfer any such rights to AT. The Client’s use of the Services does not grant AT any rights to the Client’s Intellectual Property, except as necessary to provide the Services or explicitly stated in this Agreement. The Client is responsible for ensuring that any Client Data shared does not infringe upon third-party Intellectual Property rights and complies with all Applicable Laws.

6.3 Client Data Licence

The Client shall own its Client Data. The Client grants AT a non-exclusive, worldwide, royalty-free, licence to right to collect, use, modify, adapt, and process the Client Data to:

6.3.1 deliver, support, and improve the Services;

6.3.2 conduct internal analytics and testing; and

6.3.3 develop new features or capabilities that enhance the Dashboard or API Platform.

AT shall handle Client Data in accordance with Data Protection Laws and the Data Processing Agreement. AT may generate and use aggregated, anonymised, or de-identified data derived from Client Data that does not identify the Client or its end users for our business purposes, including analytics, research, benchmarking, and service improvement, and developing and offering of new products and services. Such data is no longer considered personal data under applicable law. AT retain all rights, title, and interest in any anonymised data sets, models, or derivative works created in the course of providing or improving the Services.

6.4 Feedback

The Client may voluntarily submit comments, suggestions, or improvement ideas regarding the Services. The Client assigns all right, title, and interest in such Feedback to AT, and AT shall be free to use it without restriction or obligation.

6.5 Use of Logos and Trademarks

Each Party grants the other Party a limited, non-exclusive, non-transferable, royalty-free licence to use the other Party’s logo and trademarks (collectively the "Marks") solely for the purpose of referencing the other Party as a client or service provider in marketing materials, websites, or case studies. The use of the Marks shall:

6.5.1 comply with the brand owner’s guidelines;

6.5.2 not misrepresent or disparage the other Party; and

6.5.3 cease immediately upon written request or termination of this Agreement.

Any use of the Marks beyond the scope of this licence, or any use that materially deviates from the other Party’s brand guidelines, shall require the prior written consent of the other Party. This licence shall terminate automatically upon the termination of this Agreement.

6.6 Restrictions

The Client shall not:

6.6.1 reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Services or any component;

6.6.2 modify, copy, adapt, or create derivative works based on the Services or any component;

6.6.3 sublicense, resell, allow unauthorised third parties to access the Services; or

6.6.4 use the Services to build or train a competing product or service.

Any unauthorised use may result in immediate suspension or termination of access to the Services, in addition to any other remedies available to AT.

7. WARRANTIES AND DISCLAIMERS

7.1 Mutual Warranties

Each Party represents and warrants that:

7.1.1 It has full legal power and authority to enter into and perform its obligations under this Agreement;

7.1.2 The execution and performance of this Agreement does not violate any other agreement to which it is a party; and

7.1.3 It will comply with all Applicable Laws in the performance of this Agreement.

7.2 AT Warranties

AT represents and warrants that:

7.2.1 It will provide the Services using commercially reasonable efforts and in accordance with prevailing industry standards;

7.2.2 It will implement and maintain appropriate technical and organisational measures to protect Client Data, in accordance with Applicable Data Protection Laws and the Data Processing Agreement; and

7.2.3 It owns or has the right to provide the Services as described under this Agreement.

7.3 Disclaimer of Warranties

Except as expressly stated in this Agreement:

7.3.1 The Services are provided “as is” and “as available” without warranty of any kind, whether express, implied, statutory or otherwise.

7.3.2 AT specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and uninterrupted or error-free operation;

7.3.3 AT does not warrant that the Services will be compatible with all Client systems, error-free, or immune from interruptions, cyberattacks, or other risks beyond AT’s control.

8. LIABILITY

8.1 Indemnification 

Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party (the "Indemnified Party") from and against any third-party claims, losses, damages, liabilities, and expenses (including reasonable attorneys' fees) arising from the Indemnifying Party’s:

8.1.1 Material breach of this Agreement;

8.1.2 Infringement of any third-party intellectual property rights;

8.1.3 Violation of Applicable Law in connection with the Services; or

8.1.4 Use or misuse of the Services by the Indemnifying Party or its Authorised Users.

8.2 Limitation of Liability 

Except for liability arising from:

8.2.1 Indemnification obligations under Clause 8.1;

8.2.2 Breach of confidentiality obligations under Clause 5;

8.2.3 Infringement or misappropriation of the other Party’s Intellectual Property;

8.2.4 Violation of the Acceptable Use Policy; or

8.2.5 Breach of Applicable Data Protection Laws;

Each Party’s total aggregate liability to the other under this Agreement, whether in contract, tort (including negligence), or otherwise, shall be limited to the total amount of fees actually paid by the Client to AT under this Agreement in the twelve (12) months immediately preceding the event giving rise to the claim.

8.3 Exclusion of Liability 

To the fullest extent permitted by law, neither Party shall be liable to the other for any indirect, incidental, special, consequential, or punitive damages of any kind, including without limitation, loss of profits, loss of business, or loss of data, even if advised of the possibility of such damages. Nothing in this Agreement shall exclude or limit either Party’s liability for fraud or fraudulent misrepresentation, gross negligence or wilful misconduct; or any liability that cannot be excluded under Applicable Law.

9. FORCE MAJEURE

9.1 Force Majeure Definition

Neither Party is liable for delays or non-performance (except payment obligations) caused by events beyond their reasonable control, including:

9.1.1 Any acts of God or nature such as earthquakes, hurricanes, floods, or other extreme weather events;

9.1.2 Failures, outages, or malfunctions of essential infrastructure, including telecommunications networks, data centres, or power grids;

9.1.3 Failures or disruptions of third-party services or networks on which the Services rely, where such failures are not attributable to the negligence or wilful misconduct of the affected Party;

9.1.4 Changes in laws, government orders, or regulatory policies that materially impact the provision or legality of the Services;

9.1.6 Strikes, lockouts, or other labour disruptions that materially impact a Party's ability to perform its obligations;

9.1.7 Epidemics, pandemics, or other public health crises declared by relevant authorities; or

9.1.8 Any other unforeseeable events beyond a Party's control and not arising from its fault or negligence.

9.2 Consequences and Termination for Extended Force Majeure

If a force majeure event continues for a continuous period exceeding thirty (30) days, either Party may terminate this Agreement by giving the other Party at least seven (7) days’ prior written notice. Termination pursuant to this Clause shall be without prejudice to any rights or obligations accrued prior to the date of termination.

10. GENERAL PROVISIONS

10.1 Digital Acceptance

This Agreement may be accepted and executed by digital means, including electronic signatures and online click-throughs, and maintained in electronic format. Such acceptance and storage shall have the same legal force and effect as a manually signed agreement or a paper-based record.

10.2 Amendments

We may update this Agreement from time to time. If we make material changes, we will provide the Client with at least thirty (30) days’ prior written notice before the changes take effect, unless the change is due to legal, regulatory, or urgent security requirements, in which case AT will notify the Client as soon as reasonably possible. The updated Agreement will supersede prior versions and become binding on the effective date stated in the notice. If the Client does not agree with the changes, the Client may terminate the Agreement under Clause 4.2. Continued use of the Services after the effective date shall constitute the Client’s acceptance of the updated Agreement.

10.3 Notices

All notices required under this Agreement shall be in writing. Notices may be delivered by email, registered mail, or personal delivery as follows:

10.3.1 For general and operational matters: support@africastalking.com (with a copy to info@africastalking.com)

10.3.2 For legal notices: legal@africastalking.com P.O. Box 28044-00100, Nairobi, Kenya Notices sent by email shall be deemed effectively given upon transmission from the sender's email server, provided that the sender receives no indication of non-delivery. Notices sent by registered mail shall be deemed effectively given upon the earlier of: (a) actual receipt or (b) five (5) business days after the date of posting. Notices delivered personally shall be deemed effectively given upon actual delivery. Notices to the Client shall be sent to the email address linked to the User Account. The Client shall promptly update AT of its contact details if they are changed.

10.4 Waiver

No failure or delay by either Party in exercising any right, power or privilege provided by law or under this Agreement will operate as a waiver. No single or partial exercise of any right, power or remedy provided by law or under our Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy. A waiver of any right, power or remedy under this Agreement or by law is only effective if it is given in writing and is duly signed by the person waiving such right, power or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.

10.5 Severance

If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect. The invalid provision shall be replaced by a valid one that most closely reflects the intent of the original.

10.6 Succession

This Agreement shall bind and benefit each Party and their respective successors and permitted assigns.

10.7 Assignment

The Client may not assign or transfer this Agreement without AT’s prior written consent, except for internal reorganisations involving Affiliates. AT may assign or subcontract its rights or obligations under this Agreement to an Affiliate or service provider, provided that AT remains liable for their acts and omissions, and ensures they are bound by obligations consistent with this Agreement, including confidentiality and data protection.

10.8 Third Party Rights

No third party shall have any rights to enforce or benefit from any provision of this Agreement.

10.9 Relationship of the Parties

The Parties are independent contractors. Nothing in this Agreement shall create an agency, partnership, joint venture, or employment relationship. Neither Party has authority to bind the other without prior written consent.

10.10 Entire Agreement

This Agreement consists of the following documents, which together form the entire agreement between the Client and AT and supersedes and extinguishes any and all prior written or oral agreements between the Parties:

10.10.1 These Terms of Service; 

10.10.1 The Acceptable Use Policy; 

10.10.2 The Service Level Agreement; 

10.10.3 The Privacy Notice; 

10.10.4 The pricing displayed in the Dashboard at the time of Service activation; and

10.10.5 Any Service Confirmations.

In case of any conflict or inconsistency between these document, the order of precedence shall be:

(a) Service Confirmation (for specific services covered);

(b) These Terms of Service

(c) Service-specific terms

(d) the SLA

(e) the AUP

(f) the Privacy Notice

All documents except Service Confirmations are available at https://africastalking.com/terms_of_service and may be updated in accordance with Clause 10.2

10.11 Good Faith

The Parties agree to cooperate in good faith to address unforeseen situations or operational ambiguities not expressly covered by this Agreement. Any mutually agreed mechanisms for addressing such issues may be documented in an addendum or incorporated into a Service Confirmation.

10.12 Definitions

Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the Party;

API Key means the unique and secret authentication code issued to you on the User Account which the Client shall use to consume the Services;

API Platform means the APIs, infrastructure, and support provided by AT that enables Clients to integrate and use the Services, within their Client Application;

Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance with binding force relevant to the Services in the Territory;

Authorised User means any natural person (a) whom a Client invites or permits to access the Services under its User Account, or (b) who otherwise uses the Services on a Client’s behalf, including its employees, contractors, agents and Affiliates.

Beneficial Owner means the entity (whether an individual or organisation) identified in the service activation request as having the ultimate right to use and control any allocated telecommunications resources (shortcodes, USSD codes, phone numbers), regardless of who technically manages such resources through the Dashboard or API Platform;

Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in the Territory;

Client Application means any software application, system, or website created, owned, or managed by the Client that integrates with AT’s APIs to use AT’s services for interacting with end users;

Client Data means data and other information made available by or for the Client, to AT, through the use of the Services under this Agreement;

Control means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity, and Controlling and Controlled shall be construed accordingly;

Dashboard means AT's web-based management portal through which Clients manage their account, Services, users, and billing;

Documentation means AT’s documentation, including any usage guides and policies, for the Services, the current version of which is available at https://developers.africastalking.com/;

Network Provider means a telecommunications operator that AT partners with to deliver connectivity, routing, and network access for SMS, voice, and other communication services and Network Providers shall be construed accordingly;

Regulator means any governmental or regulatory authority with jurisdiction over telecommunications, data privacy, and other applicable regulations relevant to AT’s Services and Client usage within the Territory;

Services means all communication solutions provided by AT, including but not limited to SMS, voice, USSD, data and airtime and other APIs that Clients can integrate with their own systems to enable messaging, calling, or data exchange;

Service Confirmation means the electronic confirmation generated when the Client activates Services through the Dashboard, which includes the Services selected, applicable pricing at time of activation (if different from the website pricing), and any service-specific terms accepted;

Territory means a country in which AT provides the Services to the Client;

User Account means the account created by the Client on the Dashboard that grants access to AT’s Services, tracks service usage, and enables configuration of APIs and other functionalities; and

Wallet means the e-wallet in the User Account to which a Client loads a value of money to utilise in respect of the Services.

10.13 Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya. The Parties shall use good faith efforts to resolve any disputes amicably. If the dispute is not resolved within thirty (30) days of initiation, either Party may refer the matter to the non-exclusive jurisdiction of the courts of Kenya.

Previous Terms of Service

These Terms of Service (Agreement) set out the legally-binding terms and conditions for your use of the Services. This Agreement is effective on 10 September 2019 for all Clients agreeing to this Agreement for the first time, and 1 November 2019 for all Clients who had an existing agreement with AT before 10 September 2019 except where otherwise communicated with you.

To be eligible to register for an AT account in order to use the Services, or to continue using the Services, you must review and accept this Agreement by clicking on the “I Accept” button or other mechanism provide.

BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES IT REFERS TO. ONCE ACCEPTED, THIS AGREEMENT SHALL CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US AND SHALL SUPERSEDE ANY EXISTING AGREEMENT YOU MAY HAVE WITH US EXCEPT WHERE OTHERWISE COMMUNICATED. PLEASE BE AWARE THAT BY CONTINUING TO USE OUR SERVICES AFTER 10 SEPTEMBER 2019 (OR 1 NOVEMBER 2019 RESPECTIVELY), YOU ARE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES.

In this Agreement, we, us, our or AT will refer collectively to Africa’s Talking International Limited and its subsidiaries/affiliates existing from time to time and the terms you, your and Client will refer to you. If you are registering for an account in order to use the Services on behalf of an organisation, then you are entering into this Agreement on behalf of that organisation and represent and warrant that you have the authority to bind that organisation to this Agreement (and, in which case, the terms you, your and Client will refer to that organization). AT and the Client are each referred to in this Agreement as a Party and collectively as the Parties.

1. Definitions

1.1 In this Agreement, unless otherwise specified, the following words shall have the meanings next to them:

Affiliate means in relation to a Party, any other body corporate directly or indirectly, Controlling, Controlled by, or is under common Control with, such Party and Affiliates shall be construed accordingly;

API Key means the unique and secret authentication code issued to you on the User Account which you shall use to access the API Platform;

API Platform means AT’s application programming interface platform accessible on the Site;

Control means, in relation to a body corporate, the power or ability of a person to secure that the affairs of the body corporate are conducted directly or indirectly in accordance with the wishes of that person: (1) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (2) by virtue of any powers conferred by the articles of association, or any other document, regulating that or any other body corporate, and Controlling and Controlled shall be construed accordingly;

Disclosing Party means a Party that discloses Confidential Information;

Force Majeure Event means any happening or event which is beyond the reasonable control of a Party and which negatively affects a Party’s performance of its obligations or makes such performance impossible or so impracticable as to be considered impossible in the circumstances including acts of God, riots, war, armed conflict, civil strife, acts of terrorism, acts of government, the Regulator or other regulators, fire, power outages, material adverse weather conditions including flood, storm or earthquake, or disaster, geographical topography, or the unexpected refusal, or inability or delay by a third party to supply goods or services to a Party;

Intellectual Property means any and all patents, trademarks, copyrights, inventions, Works, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information, know-how, trade secrets, discoveries, creations, inventions or improvements upon or additions to an invention, moral rights, any research effort relating to any of the above and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;

Network Provider mean a network provider in a country AT operates in and Network Providers shall be construed accordingly;

Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Person includes a natural person, body corporate, unincorporated venture, trust, joint venture, association, statutory corporation, state, state agency, governmental authority or firm;

Receiving Party means a Party that receives Confidential Information;

Regulator means the relevant regulatory authority in a country AT operates in that governs telecommunications or payments;

Representatives means a Party’s directors, officers, employees or agents;

Service Order Form means the service order form(s) executed by you and AT, which describes the specific Service you have requested and the applicable pricing of the Services, which shall form part of this Agreement;

Site means AT’s website being https://www.africastalking.com; and

Stash means your wallet in the User Account to which you load a value of money to utilize in respect of the Services.

2. Overview

2.1 AT is a service company which provides mobile telecommunication solutions through its API Platforms (the Services). This Agreement governs the Parties’ respective obligations regarding all Services provided to or used by you. AT may update this Agreement from time to time. If we do, the updated Agreement will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of this Agreement. We will provide you advance notice of any material revisions to the email address linked to your User Account, unless a different email address is specified in a Service Order Form. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.

2.2 This Agreement incorporates the following additional terms, policies and agreements:

2.2.1 a Service Order Form, where applicable;

2.2.2 the Code of Conduct;

2.2.3 the Service Level Agreement; and

2.2.4 the Privacy Policy.

2.3 AT grants you a limited, revocable, personal, non-exclusive, non-transferable, non-sub licensable licence until this Agreement is terminated to use the API Platform. This licence shall extend to your Affiliates, provided that such Affiliates are acting via your User Account and provided further that you remain jointly and severally liable for all acts and omissions of your Affiliates.

3. Access and Security

3.1 To access and use the Services, you must create a User Account on the API Platform. The User Account shall be solely accessible using a username and password set by you, and an API Key generated by you on the User Account.

3.2 AT shall work together with you on the integration between your platform and the API Platform for the purpose of this Agreement.

3.3 You shall access the User Account over a secure HTTPS connection. You shall be fully responsible for contents of your User Account, the API Key and your internal local area network and security setups, including configuration of firewalls and other protocols required to protect your network from hackers and malicious intrusion.

3.4 You may be requested to complete a Service Order Form confirming your requested Service and you shall comply with AT’s KYC documentation when required, including but not necessarily limited to submitting to AT:

3.4.1 a duly filled out KYC form;

3.4.2 a copy of its certificate of incorporation;

3.4.3 a copy of its tax identification number from the relevant tax authority; and

3.4.4 a form from the relevant companies registry indicating the shareholder and directors structure.

3.4.5 AT may from time to time require you to update the identification information/ documents it holds on your behalf as may be required by a Regulator or a Network Provider and shall have the discretion to suspend the provision of the Services until such update is provided.

4. Fees and Payment

4.1 Unless otherwise agreed upon by both Parties in writing, you shall pay AT the fees set out on the Site, in advance. Additionally, AT shall charge you, in accordance with 5.2 any additional penalty you incur as a result of a violation of the Code of Conduct.

4.2 Invoices in respect of any invoiceable payments shall be sent to the e-mail address specified by you, and shall be deemed received on the date sent. Such invoices will specify the payment period. Without prejudice to any other right or remedy that it may have, if you fail to pay an invoice within seven (7) days of the due date indicated in such invoice, AT shall charge a finance charge of 1% per month on the sum due payable from the due date until the invoice is settled. If you fail to pay AT any sum due within thirty (30) days of the due date indicated in such invoice, AT may suspend all or part of the Services until payment has been made in full. AT shall immediately without undue delay or any additional requests from you reactivate any Services once it has received full payment from you.

4.3 The fees shall be subject to change from time to time in line with any rates adjustments by the Network Provider, the Regulator, and/or the government of the relevant jurisdiction the Services are provided in and such change shall be notified to you as soon as reasonably possible. Any changes in charges at the discretion of AT shall be notified to you at least thirty (30) days prior to the changes taking effect.

4.4 All fees payable to AT shall be:

4.4.1 inclusive of VAT (unless otherwise stated); and

4.4.2 paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as may be required by law).

5. Code of Conduct

5.1 AT hereby informs you that, it has or may from time to time become party to codes of conduct with the Network Providers and the Regulator and that such provisions form part of the Code of Conduct. You shall comply with the Code of Conduct and AT shall as soon as reasonably practicable inform you of any amendments made from time to time.

5.2 AT shall have the right to terminate this Agreement if you fail to comply with the Code of Conduct. Further, AT shall charge you a penalty as may be determined by the Network Provider and/or the Regulator for each spammed message sent by you to its end users.

6. Acts of a Network Provider

6.1 You are hereby made aware that a Network Provider may have the right to act unilaterally and to the prejudice of AT including but not limited to the Network Provider (a) reviewing its rate charge at any time and (b) at its sole direction deciding to terminate a service. The Parties hereby agree that in the event that an act by the Network Provider against AT prejudices you, you shall have no claim of whatsoever nature against AT and/or its Representatives, irrespective of the prejudice suffered by you.

6.2 The Parties agree to have good faith negotiations to amend the Agreement in the event of a unilateral and prejudicial act by a Network Provider against AT and in the event that Parties cannot agree to the amended terms, either Party shall have the right to terminate the Agreement in accordance with clause.

7. Confidentiality

7.1 In this Agreement, Confidential Information means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include information which is already known to the receiving Party at the time of disclosure by the Disclosing Party; is or becomes publicly known through no wrongful act of the Receiving Party; is independently developed by the Receiving Party without benefit of the Disclosing Party’s Confidential Information; or is received by the Receiving Party from a third party without restriction and without a breach of an obligation of confidentiality.

7.2 Each Party hereby agrees that if either Party provides Confidential Information to the other Party, such Confidential Information shall be held in the strictest of confidence and the receiving Party shall afford such Confidential Information the same care and protection as it affords generally to its own confidential and proprietary information (which in any case shall not be less than reasonable care) to avoid disclosure to or unauthorized use by any third party.

7.3 The receiving Party may disclose confidential Information to the minimum extent required by (a) any applicable order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body or (b) the applicable laws or regulations of any country or governmental authority with jurisdiction over the affairs of the receiving Party, provided, however, before the receiving Party discloses any information under this clause, the receiving Party shall (to the extent permitted by law) use all reasonable endeavors to: (i) inform the disclosing Party of the full circumstances and the information that will be disclosed; (ii) take all such steps as are reasonable and practicable in the circumstances to agree the contents of such disclosure with the disclosing Party before making the disclosure; (iii) consult with the disclosing Party as to possible steps to avoid or limit disclosure; and (iv) co-operate with the disclosing Party should the disclosing Party elect to contest or seek further assurances with respect to the obligation to make a disclosure pursuant to this clause 7.

7.4 AT shall ensure that the collection, handling, storage, processing and disposal and any other use (collectively Processing) of Personal Data is done in compliance with all applicable data, privacy and cyber security laws and that Personal Data that is accessed or collected during the performance or utilization of the Services is kept secure and AT shall use appropriate technological, organisational and security practices and systems in respect of the Personal Data to comply with legal and regulatory requirements including data protection requirements. AT shall take prompt remedial action against any unauthorised use, storage, reproduction or redistribution of the Personal Data and shall immediately notify you of any Personal Data breaches and no later than seventy two (72) hours after it has become aware of the breach. AT shall keep records of Personal Data breaches, indicating the relevant facts, their effects and the remedial actions taken.

7.5 If AT will be Processing Personal Data from the EEA, Switzerland, or the United Kingdom on your behalf, and you wish to execute a Data Protection Agreement (DPA) with AT, as required by the General Data Protection Regulation (GDPR), then you may do so by submitting a request. Upon receipt of your request, we will send you a GDPR DPA ready for execution.

8. Intellectual Property

8.1 Each Party shall retain its Intellectual Property whether registered or not, used by or related to either Party. All legal and beneficial rights the Intellectual Property which AT provides to you for the purpose of using the Services will remain at all times the property of AT or its owner or licensor. To the extent that it is so entitled, AT grants you a non-exclusive, non-transferable licence to use such Intellectual Property for the sole purpose of using the Services as contemplated under this Agreement. The Client shall not modify, adapt, translate, reverse engineer or disassemble AT’s API Platform, Services or any other Intellectual Property owned by AT.

8.2 If you provide any feedback to AT the Site or Services, you hereby assign to AT all right, title, and interest in and to the feedback, and AT is free to use the feedback without payment or restriction.

9. Term and Termination

9.1 Term 
Unless otherwise specified in a Service Order Form, this Agreement, as may be updated from time to time, will commence on the date it is accepted by you and shall continue unless terminated in accordance with this clause 7.

9.2 Termination for breach by either Party 
Either Party shall be entitled to terminate this Agreement in the event that:

9.2.1 commits a breach of any of its material obligations herein and fails to remedy such breach within thirty (30) Days after delivery of written notice thereof from the non-defaulting Party;

(ii) if it repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or

(iii) the other Party becomes insolvent.

9.3 Termination by AT

9.3.1 AT shall be entitled to terminate the Agreement with immediate effect by serving written notice to you if you breach the Code of Conduct or where AT has been instructed to cease providing the Services by a Regulator or by any other competent authority, or if an agreement between AT and a Network Provider integral to the provision of the Services is terminated.

9.4 Termination for convenience 
A Party may terminate this Agreement without cause by serving thirty (30) days’ written notice of termination on the other Party.

9.5 Consequences of termination of the Agreement

9.5.1 AT shall deactivate the Services immediately upon expiry of the notice period provided in the notice of termination issued by either Party or immediately on receipt of a notice of termination from either Party where no period has been provided (the Effective Termination Date).

9.5.2 The termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Effective Termination Date, including the right to claim damages in respect of any breach of the Agreement which existed at or before the Effective Termination Date.

9.5.3 Upon termination of this Agreement, any amounts in respect of the Service charges payable which have not been paid shall be paid in full by you within thirty (30) days of the Effective Termination Date.

9.5.4 Where applicable, AT will refund the following amounts paid by you less any deductions which AT is entitled to charge to you under this Agreement within thirty (30) days of the Effective Termination Date:

the deposit (if any) paid by you (without interest); and

the value of any credited but unutilized amount in the Stash.

10. Indemnification

10.1 Subject to the limitations in clause 11, each Party (the Indemnifying Party) hereby agrees to indemnify, defend, protect and hold harmless the other Party (the Indemnified Party) and its Affiliates, from and against, and to assume liability for any loss, damage, expense or cost (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or in connection with: (i) an infringement by the Indemnifying Party of a third party’s Intellectual Property (ii) any violation by the Indemnifying Party of any applicable law or governmental regulation; and (iii) any material breach by the Indemnifying Party of its obligations under this Agreement. You further agree to indemnify AT against any claims of whatever nature by third parties arising from or due to your use of the Services.

10.2 Nothing in this Agreement excludes or is intended to exclude either party’s liability for fraud caused by the actions or omissions of such Party or its Representatives.

11. Limitation of Liability

Except as provided in clause 10, in no event shall either Party be liable to the other Party for any consequential, special or indirect losses or damage sustained by either party or any third parties in using the Services, howsoever arising whether under contract, tort or otherwise (including, without limitation, third party claims, loss of business or profit, loss of, customers, loss of data or information, cost of substitute performance, or damage to reputation or goodwill) even if it has been advised of the possibility of such damages.

12. Notices

You hereby authorise AT to send notices to you relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address you provide to us in the Service Order Form, and if no Service Order Form has been executed, to the email address linked to your User Account. It is your responsibility to keep your email address current, and you will be deemed to have received any email sent to the last known email address AT has on record for you. Notices that AT sends to you via email will be deemed effective upon AT’s sending of the email. Notices provided to AT under this Agreement shall be sent to the attention of support@africastalking.com, with a copy sent to the following address with respect to any legal matters, at legal@africastalking.com.

13. Variation

No variation, amendment or any alteration to any of the terms and conditions of this Agreement shall be of any force or effect unless they have been reduced to writing and have been duly signed by the Parties. The Parties agree that no other terms or conditions, whether oral or written, and whether express or implied, apply to this Agreement.

14. Waiver

No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same, and any such waiver will be effective only in a specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege.

15. Severability

If any term of this Agreement is to any extent illegal, otherwise invalid or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms shall remain in full force and effect; and to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.

16. Entire Agreement

16.1 This Agreement including the additional terms, policies and agreements indicated in clause 2.3, constitutes the entire agreement of the Parties and it supersedes any prior written or oral agreements between the Parties. In case of any ambiguity or conflict between this Agreement, and a Service Order Form, this Agreement shall take precedence except where the dispute is in relation to the applicable pricing.

17. Assignment

Neither Party shall assign any or all of its rights and obligations under this Agreement without the prior written consent of the other Party.

18. Force Majeure Event

18.1 Provided it has complied with notice requirements under this clause, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

18.2 The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

18.3 The Affected Party shall:

18.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than ten (10) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and

use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

18.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than two (2) months, the Party not affected by the Force Majeure Event may terminate this Agreement by giving thirty (30) days written notice to the Affected Party.

19. Governing Law and Dispute Resolution

19.1 Governing Law
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with the laws of England and Wales.

19.2 Amicable Settlement

19.2.1 The Parties shall use their best efforts to settle amicably any dispute arising from or in connection with this Agreement through good faith negotiations between the senior officers of the Parties. The Party seeking resolution of a dispute will first give notice in writing to the other Party, setting forth the nature of the dispute and a concise statement of the issues to be resolved.

19.2.2 All information exchanged during this meeting or any subsequent dispute resolution process, shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the Parties and their Representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the dispute resolution process.

19.3 Arbitration

19.3.1 If the dispute has not been settled amicably within thirty (30) days (or such longer period as may be agreed upon between the Parties) from when the dispute resolution process was instituted, a Party may elect to refer the dispute to arbitration for final resolution under the arbitration rules of the London Court of International Arbitration (LCIA).

19.3.2 Where a Party elects to commence arbitration proceedings, such arbitration shall be determined by a single arbitrator to be appointed by agreement between the Parties or, in default of such agreement, within fourteen (14) days of the notification of a dispute, the arbitrator shall be appointed upon the application of either Party, by a Judge of the Supreme Court of Mauritius.

19.3.3 The arbitration shall be conducted in Port Louis, Mauritius. The language of the arbitration shall be English.

19.3.4 The award of the arbitrator shall be final and binding upon the Parties and any Party may apply to a court of competent jurisdiction for enforcement of such award.

19.3.5 Notwithstanding the foregoing, a Party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.