This Agreement (and all other documents referenced herein) is entered into by BLACK KNIGHT AFRICA and YOU for the purpose of providing Web-based access to your application that may be in a form of software specified in the contract, including any updates, upgrades or revisions provided under this Agreement (“Software”), and certain other services relating to the processing of and response to online inquiries and messages (“Online Messages”) received by YOU from your customers and other users of your Web site (“Users”).
PROVISION OF SERVICES
Black Knight Africa will provide Customer with access, maintenance and related hosting services (“Hosting Services”) to the Software installed on our servers and other equipment (the “BLACK KNIHT AFRICA System”).
Customer agrees, as reasonably requested by us, to provide us with access to Customer’s premises and equipment and to otherwise cooperate with us in performing the services.
During the term of this Agreement, Customer may obtain information (“Reports”) regarding Customer’s use of the Software and the quantity and handling of Online Messages routed to Infinity Computer’s System by accessing it through a password-protected Web site made available by Black Knight Africa. Customer shall be responsible for maintaining the confidentiality of such passwords and shall permit only their authorized employees to access the System.
The Hosting Services, and the hosting fees specified in our price list, do not include any deployment, training or other consulting or professional services which, if applicable, will be specified in a Statement of Work, signed by both parties, and incorporated herein by this reference.
Black Knight Africa will provide live telephone/email/social media support to Customer twenty four hours a day, seven days a week by a trained Black Knight Africa’ customer support representative.
Customer agrees that it shall be responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials (“Customer Equipment”) at Customer’s location necessary for accessing the Software and the Black Knight Africa System through the Internet. Customer agrees to notify Black Knight Africa of any changes in the Customer Equipment, including any system configuration changes or any hardware or software upgrades, which may affect the Hosting Services provided hereunder. The Black Knight Africa System is only to be used for lawful purposes. Customer agrees not to transmit, re-transmit or store materials on or through the Black Knight Africa System or the Software that are harmful to the Black Knight Africa System or Software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others.
To the extent that certain components of the Software may be downloaded to Customer’s or User’s computer as a result of accessing the Software as part of the Hosting Services, Black Knight Africa grants Customers a non-exclusive, non-transferable, limited license, with right to sublicense solely to Users, to use such Software only in connection with the Hosting Services. Neither Customer nor Users are otherwise permitted to use the Software, nor will Customer or Users disassemble, decompile or otherwise attempt to discern the source code of such Software.
Customer agrees that, except as expressly set forth in this Section, it will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Agreement or any of Customer’s rights or licenses to access the Software or the Black Knight Africa System, nor shall Customer use, or authorize others to use, the Software, Hosting Services or the Black Knight Africa System to operate a service bureau. Notwithstanding the preceding sentence, Customer shall be permitted to provide access to the Black Knight Africa System to its employees and agents located worldwide.
Except for the limited access right granted to Customer in this Agreement, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) and the Black Knight Africa System are and shall remain the exclusive property of Black Knight Africa and its licensors. Black Knight Africa acknowledges and agrees that the Online Messages are the property of Customer and that Black Knight Africa has only a limited right to use the Online Messages as set forth in the following sentence. Notwithstanding the foregoing, Black Knight Africa may access and disclose the Online Messages solely as necessary to provide the Hosting Services, to operate and maintain its systems, to comply with applicable laws and government orders and requests, and to protect itself and its customers.
PRICING AND PAYMENT
Customer agrees to pay the fees and other charges for the Hosting Services and other services provided under this Agreement. CUSTOMER AGREES TO PAY FOR HOSTING SERVICES ON OR BEFORE THE PARTICULAR DAY OF THE MONTH IN WHICH THE HOSTING SERVICES ARE PROVIDED, except that, with respect to Additional Fees (as defined in our services price list), Black Knight Africa will invoice Customer for such Fees in the month after the month in which such fees accrue. All amounts payable hereunder are exclusive of any and all taxes, and Customer is responsible for payment of such taxes (excluding taxes based on Black Knight Africa’ net income).
All prices are stated, and Customer shall pay, in [United States Dollars, or Uganda Shillings].
Payment received by Black Knight Africa after the due date shall be subject to a late fee equal to 30% percent of the invoice value. At the end of the initial Five-year term of this Agreement and any subsequent terms, Black Knight Africa may adjust the monthly fee payable under this Agreement by providing Customer written notice of such adjustment at least five days prior to the beginning of the new term.
LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES
Black Knight Africa warrants and represents to Customer that (i) the Software will perform substantially in accordance with the documentation, if any, provided by Black Knight Africa to Customer, and (ii) the Hosting Services will be performed in a professional and workmanlike manner and in accordance with Section 2.
In the event of Downtime (as defined in this Section below), as Customer’s sole and exclusive remedy and Black Knight Africa’ sole and exclusive liability, the monthly fee payable for the Hosting Services shall be compensated with a rebate offset on future pay as shall be reasonable determined based on the proportional down time as computed against the period pf pay.
For the purposes of this Agreement, “Downtime” shall mean any interruption in the availability of Hosting Services to Customer (excluding scheduled interruptions of which Customer is notified in advance, only if such interruption is due either to:
an error in the Software, or
failure of the Black Knight Africa System (but not including problems associated with Internet connectivity).
Downtime begins upon Customer notification to Black Knight Africa of the interruption, either by speaking directly with a customer service representative from Black Knight Africa or by sending email to firstname.lastname@example.org, and continues until the availability of the Hosting Services is restored to the Customer. For purposes of this Agreement, “Normal Business Hours” shall mean between the hours of 8am to 6pm [Local Kampala Time], Monday through Friday excluding Weekends and National Holidays.
In the event of a breach (other than Downtime) of the warranty, Black Knight Africa’ sole and exclusive liability shall be at Black Knight Africa’ option to remedy the software through, or replacement of the Software.
THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND BLACK KNIGHT AFRICA’ ENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY PROVIDED IN THIS SECTION
THE HOSTING SERVICES ARE PROVIDED, AND THE SOFTWARE AND THE BLACK KNIGHT AFRICA SYSTEM ARE MADE AVAILABLE, BY BLACK KNIGHT AFRICA TO CUSTOMER “AS IS,” AND BLACK KNIGHT AFRICA AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE BLACK KNIGHT AFRICA SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
Without limiting the express warranties set forth in this Agreement, Black Knight Africa does not warrant that the Software, the Black Knight Africa System or the Hosting Services will meet Customer’s requirements, or that Customer’s access to and use of the Software, the Black Knight Africa System or the Hosting Services will be uninterrupted or free of errors or omissions.
Black Knight Africa cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to, the Internet. Black Knight Africa will use commercially reasonable efforts to adequately maintain, and upgrade as necessary, the Black Knight Africa System to provide the Hosting Services to its customers.
However, except as expressly set forth herein, Black Knight Africa shall not be responsible for any delays, errors, failures to perform, or disruptions in the Hosting Services caused by or resulting from any act, omission or condition beyond Black Knight Africa’ reasonable control.
LIMITATION OF LIABILITY
EXCLUDING LIABILITY FOR INFRINGEMENT CLAIMS AS DISCUSSED IN SECTION 9 OF THIS AGREEMENT, IN NO EVENT SHALL BLACK KNIGHT AFRICA BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF BLACK KNIGHT AFRICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Black Knight Africa’ entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to the price paid for the Services out of which the claim arose.
Each party agrees to keep confidential and to use only for purposes of performing (or as otherwise permitted under) this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or which would reasonably be considered of a confidential nature.
The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed.
Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.
Subject to the limitations set forth in this Section 9, Black Knight Africa will defend any third-party suit or action against Customer to the extent such suit or action is based on a claim that the Software or the Black Knight Africa System infringes any valid UGANDAN patent, copyright, trade secret or other proprietary right, and Black Knight Africa will pay those damages and costs finally awarded against Customer in any monetary settlement of such suit or action which are specifically attributable to such claim.
These obligations do not include any claims to the extent they are based on use of the Software or Black Knight Africa System in violation of this Agreement or in combination with any other software or hardware, or any modification to the Software or Black Knight Africa System pursuant to Customer’s specifications.
If any portion of the Software or Black Knight Africa System becomes, or in Black Knight Africa’ opinion is likely to become, the subject of a claim of infringement, then Black Knight Africa may, at its option and expense,
procure for Customer the right to continue using such Software or the Black Knight Africa System, or replace or modify the Software or the Black Knight Africa System so that it becomes non-infringing.
The indemnity obligations set forth in this Section 9 are contingent upon:
Customer giving prompt written notice to Black Knight Africa of any such claim(s);
Black Knight Africa having sole control of the defense or settlement of the claim; and
at Black Knight Africa’ request and expense, Customer cooperating in the investigation and defense of such claim(s). THE FOREGOING STATES BLACK KNIGHT AFRICA’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
TERM AND TERMINATION
This Agreement shall continue in effect from the Effective Date for a period as specified, unless earlier terminated as set forth below, and thereafter shall renew automatically for successive five year periods unless either party gives the other party at least 30 days prior written notice of its intent not to renew the Agreement.
In addition, either party may terminate this Agreement by giving to the other party written notice of such termination upon the other party’s material breach of any material term (subject to the other party’s right to cure within five days after receipt of such notice), the other party’s insolvency, or the institution of any bankruptcy or similar proceedings by or against the other party.
Effect of Termination
Upon any termination of this Agreement, Black Knight Africa shall immediately cease providing all Hosting Services, and Customer shall no longer have access to the Software or the Black Knight Africa System. Except in the event of termination for Customer’s breach, Black Knight Africa shall provide Customer with an electronic copy of the final Reports (covering the month just prior to termination of this Agreement). Black Knight Africa shall be entitled to retain a copy (whether electronic or otherwise) of the Online Messages and the Reports for its records and internal purposes and shall not disclose such Online Messages or Reports to any third party except as permitted under Section 4. Within five days of any termination of this Agreement, Customer shall pay to Black Knight Africa all unpaid fees accrued prior to termination. Sections 4, 5 (as to amounts accrued but unpaid), 7, 8, 10.2 and 12 (as to amounts accrued but unpaid) shall survive any expiration or termination of this Agreement.
Customer agrees that, Black Knight Africa may reference Customer in Black Knight Africa’ customer listings and may place Customer’s name and logo on Black Knight Africa’ Web site and in collateral marketing materials relating to Black Knight Africa’ products and services. Customer hereby grants Black Knight Africa a right to use Customer’s trademarks (name and logo only) designated by Customer for such limited uses, subject to Customer’s trademark/logo usage guidelines, if any, provided by Customer to Black Knight Africa. With these limited exceptions, Black Knight Africa agrees that it may not use Customer’s name, logo or any other trademarks (including in any press releases, customer “case studies,” and the like) without Customer’s prior consent.
This Agreement, constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Uganda exclusive of its conflict of laws principles.
Notices under this Agreement shall be in writing, addressed to the party at its last-provided address, and shall be deemed given when delivered personally, or by e-mail (with confirmation of receipt) or conventional mail (registered or certified, postage prepaid with return receipt requested).
Nothing contained in this Agreement is intended or is to be construed to constitute Black Knight Africa and the Customer as partners or joint venturers or either party as an agent of the other.
If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect.
All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion.
Neither party may assign or otherwise transfer its rights and/or obligations under this Agreement without the prior written consent of the other party.
Notwithstanding the foregoing, no consent shall be required for an assignment of this Agreement made pursuant to a merger, consolidation, or the acquisition of all or substantially all of the business and assets of a party.
This Agreement will bind and inure to the benefit of the parties and their successors and permitted assigns.
Each party agrees to the terms and conditions contained in this Agreement.
Last Edited: November 17 2023