Software Reseller Agreement

Updated August 7, 2010

You can access a PDF version here.

This License Agreement ("Agreement") is a legally binding agreement between you, the developer, ("Licensor") and Shujaa Solutions Ltd, 17th Floor, Anniversary Towers, P.O. Box 48183 - 00100, Nairobi, Kenya ("Shujaa Solutions").This Agreement sets forth the terms and conditions applicable to Shujaa Solutions' distribution of any of the software applications and related documentation that Licensor provides ("Applications") to Shujaa Solutions and desires for Shujaa Solutions to distribute through Shujaa Solutions Sites and/or Additional Distribution Channels (collectively, the "Shujaa Solutions Sites")."Shujaa Solutions Sites" means any site owned or operated by Shujaa Solutions, or any of their subsidiaries, which may include but is not limited to shujaa.co.ke, shujaa.mobi and corresponding international domains."Additional Distribution Channels" means any site (other than Shujaa Solutions Sites) for which Shujaa Solutions provides content, performs billing, and/or manages the user experience.

1 License Grant

1.1 License

Licensor hereby grants to Shujaa Solutions an assignable, non exclusive, license to:

  • Copy, reproduce, display, and sell all Applications in object code format only, via the Shujaa Solutions Sites.

  • exploit, use, distribute, transmit, sublicense, transfer and assign an unlimited number of copies of all Applications to end users, in object code format only via the Shujaa Solutions Sites.

  • copy, publicly display, publicly perform, and otherwise use the Applications for demonstration purposes in connection with the marketing and sale and distribution of the Applications.

  • use any trademarks used by Licensor in connection with the Applications solely in connection with the marketing, sale and distribution of the Applications through the Shujaa Solutions Sites. With respect to each Application, the foregoing license shall commence on the date Licensor provides the Application to Shujaa Solutions and will terminate on the earlier of:

    • the date the Application is removed from the Shujaa Solutions Site(s), or

    • the date of termination of this Agreement. All rights in the Applications not granted in this Agreement are hereby reserved by Licensor.

1.2 License Restrictions

Except to the extent permitted by this Agreement or by applicable law, Shujaa Solutions agrees not to:

  • decompile, reverse engineer, disassemble or modify the Applications; or

  • remove, efface or obscure any copyright or other proprietary notices or legends from the Applications.

Notwithstanding the foregoing, Shujaa Solutions shall have the right to modify any documentation that accompanies an Application to conform such documentation to Shujaa Solutions' posted terms of submission.

1.3 Shujaa Solutions Property and Rights

Licensor hereby acknowledges and agrees that nothing in this Agreement grants to Licensor a right or license in any patents, copyrights, trade secrets, trademarks, logos or other property or rights of Shujaa Solutions.

2 Removal of Applications from the Shujaa Solutions Sites

2.1 Removal Request

Licensor may request, in writing, the removal of an Application(s) from the Shujaa Solutions Sites. Any such request shall be deemed a request to remove such Application(s) from all Shujaa Solutions Sites.

2.2 Removal by Shujaa Solutions

Shujaa Solutions may at any time, at its sole discretion and for any reason, remove an Application(s) from any or all Shujaa Solutions Sites.

2.3 End User's Rights Upon Removal

Although any removal of any Application(s) as provided herein will terminate this Agreement with respect to the Application(s), Licensor acknowledges and agrees that the removal of an Application(s) by Shujaa Solutions from the Shujaa Solutions Sites will not terminate an end user's rights or licenses to continue to use such Application(s) if the Application(s) was downloaded by the end user prior to removal.

3 Pricing and Payments

  • 3.1 For each purchase of an Application hereunder, Shujaa Solutions shall pay Licensor a percentage of the Net Receipts, based on the Revenue Exhibits (which are incorporated herein by reference), and Shujaa Solutions will retain the balance of the Net Receipts. "Net Receipts" means all amounts Shujaa Solutions actually receives from a sale of an Application hereunder, less

    • any applicable sales, use, value-added or other taxes, and

    • any transactions costs, including but not limited to credit card fees, network charges, Premium SMS or transaction charges incurred via Carrier billing services, and any other direct costs Shujaa Solutions incurs in connection with the sale transaction.

    Except as otherwise noticed in a Revenue Exhibit, Shujaa Solutions shall pay Licensor's percentage of Net Receipts in Kenya Shillings. IF REQUIRED BY APPLICABLE LAWS AND REGULATIONS, SHUJAA SOLUTIONS MUST WITHHOLD TAXES FROM PAYMENTS TO LICENSOR.

  • 3.2Shujaa Solutions shall pay Licensor at the end of each calendar month for all amounts owed to Licensor with respect to Application sales actually collected during the previous calendar month, less credits for returns and chargebacks as described below. Notwithstanding the foregoing and unless otherwise provided in a Revenue Exhibit, if the total amount due to Licensor is less than five hundred Kenya Shillings (KES 500.00), Shujaa Solutions shall have the right to withhold payment until the next payment date on which the amount owed to Licensor equals or exceeds five hundred Kenya Shillings (KES 500.00).

  • 3.3At Shujaa Solutions' discretion, payment may be by means of cheque or electronic payment methods. If Licensor request a payment method other than the payment method chosen by Shujaa Solutions, Shujaa Solutions reserves the right to deduct its processing and delivery costs from the amount of the payment.

  • 3.4If Shujaa Solutions issues a refund from the sale of an Application, or any amounts are charged back to Shujaa Solutions as a result of a disputed credit card charge, after payment has been made to Licensor, then on the next payment to Licensor, Shujaa Solutions shall deduct all amounts paid to Licensor related to such refunds or chargebacks.

  • 3.5The regular list price that Licensor sets for all Applications that Licensor submits shall not exceed Licensor's list price (including discounts that Licensor offers) that Licensor offers through any other sales channel. Shujaa Solutions shall also have the right to receive notice of and participate in any promotions, special pricing, rebates, co-op advertising, market development funds, or other programs to the same extent that Licensor offers such opportunities to other resellers.

  • 3.6In connection with limited time offers and promotions by Shujaa Solutions or its authorized sales agents, Shujaa Solutions may discount any or all Applications up to 25% off of the regular sales price.

4 Limitation of Obligations

Shujaa Solutions is under no obligation under this Agreement to upload or market any Applications submitted to the Shujaa Solutions Sites.

5 Service Level Agreement

Licensor agrees to comply with the applicable performance obligations set forth in the service level agreement posted on the sites on which Licensor has agreed to have Applications offered ("Service Level Agreement"). The terms of the Service Level Agreement are incorporated herein by reference. In the event of any conflicts between the terms of this Agreement and the Service Level Agreement, the terms of the Service Level Agreement shall control.

6 Representations and Warranties

6.1 No Viruses

Licensor represents and warrants to Shujaa Solutions that each Application, as submitted, will be free from code that:

  • might disrupt, disable, harm or otherwise impede the operation of any software, firmware, hardware, wireless communications device, computer system or network;

  • would enable Licensor or anyone else to access the Application for any reason unless permitted by this Agreement; and/or

  • would enable the misappropriation of private information.

Shujaa Solutions may pursue any rights in law or at equity to remedy any harm caused by any Application that violates this Section 6.1 (No Viruses).

6.2 Application Representation and Warranty

Licensor represents and warrants to Shujaa Solutions that, for as long as an Application remains on the Shujaa Solutions Sites,

  • the Application will perform in accordance with applicable documentation and standards;

  • Licensor has all necessary rights to grant the licenses provided hereunder, and neither Shujaa Solutions' exercise of its license nor the Application will infringe or otherwise violate any third party rights including but not limited to copyrights, trademarks, patents, or other intellectual property rights; and

  • the Application does not and will not contain any material that is unlawful, harmful, threatening, defamatory, obscene, pornographic, harassing, private, or racially, ethically or otherwise objectionable, facilitates illegal activity, promotes violence, discrimination, or illegal activities, or incorporates any materials that infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights.

6.3 Disclaimer

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, NEITHER LICENSOR NOR SHUJAA SOLUTIONS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7 Confidentiality

You agree that any Shujaa Solutions pre-release software and/or hardware (including related documentation and materials) provided to you as a Registered Shujaa Solutions Developer ("Pre-Release Materials") and any information disclosed by Shujaa Solutions to you in connection with Shujaa Solutions Events or Paid Content (defined below) will be considered and referred to as "Shujaa Solutions Confidential Information". Notwithstanding the foregoing, Shujaa Solutions Confidential Information will not include:

  • information that is generally and legitimately available to the public through no fault or breach of yours,

  • information that is generally made available to the public by Shujaa Solutions,

  • information that is independently developed by you without the use of any Shujaa Solutions Confidential Information,

  • information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or

  • any third party software and/or documentation provided to you by Shujaa Solutions and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation.

8 Nondisclosure and Nonuse of Shujaa Solutions Confidential Information

Unless otherwise expressly agreed or permitted in writing by Shujaa Solutions, you agree not to disclose, publish, or disseminate any Shujaa Solutions Confidential Information to anyone other than to other Registered Shujaa Solutions Developers who are employees and contractors working for the same entity as you and then only to the extent that Shujaa Solutions does not otherwise prohibit such disclosure. Except for your authorized purposes as a Registered Shujaa Solutions Developer or as otherwise expressly agreed or permitted by Shujaa Solutions in writing, you agree not to use Shujaa Solutions Confidential Information in any way, including, without limitation, for your own or any third party's benefit without the prior written approval of an authorized representative of Shujaa Solutions in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Shujaa Solutions Confidential Information. You acknowledge that unauthorized disclosure or use of Shujaa Solutions Confidential Information could cause irreparable harm and significant injury to Shujaa Solutions that may be difficult to ascertain. Accordingly, you agree that Shujaa Solutions will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies it may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose Shujaa Solutions Confidential Information, you may make such disclosure, but only if you have notified Shujaa Solutions before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as Shujaa Solutions Confidential Information.

9 Confidential Pre-Release Materials License and Restrictions

If Shujaa Solutions provides you with Pre-Release Materials, then subject to your compliance with the terms and conditions of this Agreement, Shujaa Solutions hereby grants you a nonexclusive, nontransferable, right and license to use the Pre-Release Materials only for the limited purposes set forth in this Section 9; provided however that if such Pre-Release Materials are accompanied by a separate license agreement, you agree that the license agreement accompanying such materials in addition to Sections 7 and 8 of this Agreement shall govern your use of the Pre-Release Materials. You further agree that in the event of any inconsistency between Section 7 and 8 of this Agreement and the confidentiality restrictions in the license agreement, the license agreement shall govern. You agree not to use the Pre-Release Materials for any purpose other than testing and/or development by you of a product designed to operate in combination with the same operating system for which the Pre-Release Materials are designed. This Agreement does not grant you any right or license to incorporate or make use of any Shujaa Solutions intellectual property (including for example and without limitation, trade secrets, patents, copyrights, trademarks and industrial designs) in any product. Except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Shujaa Solutions intellectual property. You agree not to decompile, reverse engineer, disassemble, or otherwise reduce the Pre-Release Materials to a human-perceivable form, and you will not modify, network, rent, lease, transmit, sell, or loan the Pre-Release Materials in whole or in part.

10 Paid Content License and Restrictions

As a Registered Shujaa Solutions Developer, you may have access to certain proprietary content (including, without limitation, video presentations and audio recordings) that Shujaa Solutions may make available to you from time to time for a separate fee ("Paid Content"). Paid Content shall be considered Shujaa Solutions Confidential Information, unless otherwise agreed or permitted in writing by Shujaa Solutions. You may not share the Paid Content with anyone, including, without limitation, employees and contractors working for the same entity as you, regardless of whether they are Registered Shujaa Solutions Developers. Subject to these terms and conditions, Shujaa Solutions grants you a personal and nontransferable license to access and use the Paid Content for authorized purposes as a Registered Shujaa Solutions Developer; provided that you may only download one (1) copy of the Paid Content and such download must be completed within the time period specified by Shujaa Solutions for such download. Except as expressly permitted by Shujaa Solutions, you shall not modify, translate, reproduce, distribute, or create derivative works of the Paid Content or any part thereof. You shall not rent, lease, loan, sell, sublicense, assign or otherwise transfer any rights in the Paid Content. Shujaa Solutions and/or Shujaa Solutions' licensor(s) retain ownership of the Paid Content itself and any copies or portions thereof. The Paid Content is licensed, not sold, to you by Shujaa Solutions for use only under this Agreement, and Shujaa Solutions reserves all rights not expressly granted to you. Your rights under this license to use and access the Paid Content will terminate automatically without notice from Shujaa Solutions if you fail to comply with any of these provisions.

11 Indemnification

11.1 Indemnification

Licensor hereby agrees to defend, indemnify and hold harmless Shujaa Solutions and all end users (each an "Indemnified Party") against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, whether under a theory of negligence, strict liability, contract or otherwise, incurred or to be incurred by an Indemnified Party, including, but not limited to, reasonable attorneys' fees, arising out of, resulting from or related to any alleged breach of Licensor's obligations under this Agreement. Shujaa Solutions agrees to provide Licensor with written notice of any claim subject to indemnification, allowing Licensor to have sole control of the defense of such claim and any resulting disposition or settlement of such claim; provided, however, that Shujaa Solutions may participate in the defense of a claim at its own expense. Any disposition or settlement of a claim that imposes any liability on or affects the rights of Shujaa Solutions will require the prior written consent of Shujaa Solutions.

11.2 Exceptions

Licensor will have no liability under this Section 11 (Indemnification) for any claim or action where such claim or action would have been avoided but for modifications to an Application, or any portion thereof, made by Shujaa Solutions or an end user in violation of this Agreement.

12 Liability Limitations

12.1 No Consequential Damages

IN NO EVENT SHALL SHUJAA SOLUTIONS BE LIABLE IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR STATUTORY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUES, BUSINESS OR PROFITS. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF WHETHER SHUJAA SOLUTIONS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 Limits on Liability

IN NO EVENT SHALL SHUJAA SOLUTIONS' TOTAL, CUMULATIVE LIABILITY REGARDING ANY AND ALL CLAIMS AND CAUSES OF ACTION, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS RECEIVED BY LICENSOR FOR THE APPLICATIONS DISTRIBUTED BY SHUJAA SOLUTIONS TO END USERS.

12.3 Other

THE LIMITATIONS SET FORTH IN THIS SECTION 12 (LIABILITY LIMITATIONS) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE AND REGULATION, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION 12 (LIABILITY LIMITATIONS) ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

13 Term and Termination

13.1 Term

This Agreement will become effective upon Licensor's receipt of notice from Shujaa Solutions of Shujaa Solutions' approval of Licensor's application to the Shujaa Solutions developer program and shall continue in full force and effect until terminated as provided herein.

13.2 Termination

Either party may terminate this Agreement for any reason or for no reason by delivery of written notice to the other party at least thirty (30) days prior to the effective date of termination, which must occur on the last day of a calendar month. Shujaa Solutions may terminate this Agreement with respect to any or all Applications, with or without cause, by removing the Applications from the Shujaa Solutions Sites. Upon termination of this Agreement, Shujaa Solutions agrees to cease permitting end users, or any other persons, to download the subject Applications. Licensor acknowledges and agrees that the termination of this Agreement with respect to an Application does not terminate the rights or licenses of an end user to continue to use the Application if the Application was downloaded by the end user prior to termination. Shujaa Solutions shall have the right to permit end users to download the Application(s) if such end users have ordered the Application prior to the effective date of termination.

13.3 Survival

Upon termination of this Agreement, Sections 2.3 (End User's Rights), 11 (Indemnification), 12 (Liability Limitations), 13 (Term and Termination), and 14 (General) will survive.

14 General

14.1 Linking

To that extent that Licensor includes any links or references to Licensor's web site or those of Licensor's other resellers in the Application, Licensor may also link or reference Shujaa Solutions in a manner comparable in prominence, placement, and substance to the links or references to Licensor or Licensor's other resellers.

14.2 End User Information

Licensor agrees not to use, copy or disclose, for any purpose other than to perform Licensor's obligations under this Agreement, any personally identifiable information about end users ("End User Information") that Licensor gathers as a result of their downloads or use of the Applications. Licensor shall not share End User Information for any other purpose including but not limited to (i) any effort to capture sales from such end users, or (ii) in any manner that would violate Shujaa Solutions' posted privacy policy.

14.3 Support and Maintenance

Licensor shall be solely responsible for the content, quality and performance of the Application(s), and for any warranty, support, maintenance or other obligations related to the Application(s).

14.4 Conflicting Terms

In the event that any provision of this Agreement conflicts with the Terms of Submission, the Terms of Submission shall control.

14.5 Amendment

Shujaa Solutions may amend this Agreement by:

  • posting the revised Agreement on the Shujaa Solutions Sites and delivering notice to Licensor of the new Agreement,

  • delivering a copy of the new Agreement, either in electronic or paper form, to Licensor, or

  • any other means reasonably calculated to notify Licensor of the revised terms.

Licensor may reject the revised terms by making a written request to have all Applications removed from the Shujaa Solutions Sites within fourteen (14) days of Shujaa Solutions' delivery of the revised terms. If Licensor does not make such a request within that time period, then the revised terms shall be binding.

14.6 Publicity and Confidentiality

Except as provided herein, Licensor may not issue any marketing or other communications intended for public disclosure, including, without limitation, press releases, advertisements and websites, that reference Shujaa Solutions or use the Shujaa Solutions logo without the prior written consent of Shujaa Solutions.

14.7 Severability

In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired, and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.

14.8 Waiver

The failure by either party to require the performance of the other party under any provision of this Agreement will not affect the right of such party to require performance under said provision at any time thereafter. Nor will waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.

14.9 Construction

The headings and captions of this Agreement are inserted only for convenience and identification and are in no way intended to define, limit or expand the scope and/or intent of this Agreement.

14.10 Relationship of Parties

Licensor and Shujaa Solutions are independent contractors under this Agreement, and nothing herein shall establish any relationship of partnership, joint venture, employment, franchise or agency between Licensor and Shujaa Solutions. Neither Licensor nor Shujaa Solutions shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

14.11 Assignment

Licensor may not assign this Agreement in whole or in part without the prior written consent of Shujaa Solutions. This Agreement will bind and inure to the benefit of the respective successors and permitted assigns of Shujaa Solutions.

14.12 Compliance with Laws

Both parties agree to comply with all applicable laws, rules and regulations in connection with their activities under this Agreement.

14.13 Governing Law and Dispute Resolution

This Agreement is governed by the laws of Kenya, without regard to its conflict of law principles. The United Nations Convention on Contracts for Sale of International Goods does not apply to this Agreement.

14.14 Notices

All notices required by this Agreement must be in writing and delivered, via e-mail, Kenya mail (postage prepaid), courier or facsimile to the other party. Licensor is responsible for ensuring that Shujaa Solutions has a current and valid email address for Licensor. Shujaa Solutions shall not be responsible for Licensor's failure to receive any notices delivered to any invalid or discontinued email address, and such notices shall be deemed delivered in accordance with this Agreement. Notices shall be deemed delivered on the day that delivery of such notice is initiated by the delivering party.

14.15 Entire Agreement

This Agreement completely and exclusively states the agreement between Licensor and Shujaa Solutions regarding its subject matter. This Agreement supersedes and replaces all prior or contemporaneous understandings, representations, agreements or other communications between Licensor and Shujaa Solutions, whether oral or written, regarding its subject matter.

14.16 Independent Development

Nothing in this Agreement will impair Shujaa Solutions' right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, or distribute. In the absence of a separate written agreement to the contrary, Shujaa Solutions will be free to use any information, suggestions or recommendations you provide to Shujaa Solutions pursuant to this Agreement for any purpose, subject to any applicable patents or copyrights.