Convergence Africa Media Limited (The Company) runs a business consisting, among other activities, of hosting and publishing digital content in a variety of forms. The Company has developed a Service called Mgazeti, which is accessible on Internet and which includes:
The Publisher wishes to open an Mgazeti service account. To to use the Mgazeti Service, the Publisher declares that s/he acknowledges and accepts the General Terms and Conditions of Sale and Service hereof.
Your access to and use of Mgazeti's website and other Mgazeti internet and mobile related services as a Publisher are subject to the terms and conditions set out in this agreement. Creating a Publisher account with Mgazeti or otherwise using or accessing the Mgazeti service will signify your acceptance of these terms and conditions and constitute a binding agreement between you and Mgazeti. Mgazeti's acceptance of the Agreement is expressly conditioned on your assent to the terms and conditions set out in this agreement.
This agreement (“Agreement”) is entered into between the Publisher who has opened the Mgazeti service account (“Publisher”) and The Company
1.1 Covered Titles
1.1.1 This Agreement records the terms and conditions on which Mgazeti will make Mgazeti-implemented digitized versions of issues (“Issues”) of the Publisher’s titles of magazines, newspapers, books, newsfeeds, individual stories, videos or other publisher content uploaded on the Mgazeti platform, and to the extent permitted by this Agreement, versions thereof (“Titles”), available to individual readers, libraries, schools, colleges, hotels, airlines, distributors, institutions, device manufacturers and other third party end-users (Readers) on mobile and internet-based smart phones, tablet computers, computers, passenger entertainment system devices and similar electronic devices, including those operating any of the following operating systems—iOS 6.0 or later version (for Apple devices), or Android and later versions (for Android/Google Play) or Windows 10 and later versions and their variants or internet browser based devices or such other operating systems as may be notified by Mgazeti from time to time (“Platforms”), provided that Mgazeti’s website or other Mgazeti internet, mobile or other related services can be downloaded or accessed by the Readers on such devices and these include any devices or services that are powered by Mgazeti System as well.
1.1.2 Publisher may include, among the Titles subject to this Agreement, Titles of its affiliates, provided that Publisher shall remain liable for all Publisher obligations hereunder with respect to such Titles as if such Titles were Publisher’s own Titles, and for ensuring and securing all permissions necessary to grant Mgazeti all rights to deal with such Titles under this Agreement.
1.2 Production Services
1.2.1 Subject to the other provisions of this Agreement, Mgazeti will generate each Issue in a format established by Mgazeti, including converting Publisher’s digital files to said format and enhancing the files, as needed, with table of contents links, hyperlinks, digital reply cards and other metadata.
1.2.2 Publisher shall deliver each Issue to Mgazeti in accordance with Mgazeti’s production specifications that are available at http://www.Mgazeti.com/publisher/pdf_specs.html. Mgazeti may, at its sole discretion, update these production specifications from time to time.
1.2.3 The parties shall work together in good faith to continually improve workflow and better integrate Mgazeti’s production services with the content (including without limitation Titles, text, links, graphics, photographs, advertisements, audio and video content) delivered to Mgazeti by Publisher for access and fulfillment to Readers (“Publisher Content”). The goal of such collaborative efforts shall be to reduce the time and expense required to perform the production services.
1.2.4 Publisher shall provide Mgazeti as much notice as possible regarding any workflow changes Publisher makes.
1.2.5 Publisher shall provide Mgazeti with any information and technical assistance reasonably required for Mgazeti to provide the services contemplated by this Agreement.
1.3 Marketing, Customer Support and Fulfillment Integration
1.3.1 Mgazeti shall provide its standard marketing and distribution services for each Issue. These standard services would include distributing the digital editions to Readers through sale, rental, promotions (including distribution schemes such as all-you-can-read schemes and schemes offering Readers free samples of Titles of specific Publisher Content, as determined by Mgazeti, for a limited period of time) or any other distribution enhancement plans that may be identified by Mgazeti from time to time, automated updating of content using the Mgazeti Publisher Dashboard, creating promotional opportunities for Publishers on Mgazeti’s various distribution networks, creating stand alone Apple/iOS apps, Android apps and other apps at no cost to the Publisher, giving automated distribution reports, sub account access, ability to give free digital copies to the Publishers readers, etc. Notwithstanding the foregoing, Mgazeti may, at any time and in its sole discretion, suspend the marketing and distribution of all or any portion of any Title. In such cases, Mgazeti shall notify Publisher, and the parties shall cooperate to promptly address any issues giving rise to such suspension.
1.3.2 Mgazeti shall provide customer support to Readers regarding the access & distribution of Issues and the installation of Mgazeti’s software in accordance with Mgazeti’s standard customer support practices. Publisher shall retain responsibility for all other customer support, including without limitation Reader subscription inquiries. The parties shall work together in good faith to develop an integrated process for dealing with customer support inquiries received by one party for the other.
2.1 Reader Pricing
2.1.1 Publisher shall determine and specify all Reader pricing and other Reader offer terms applicable to the distribution of periodic subscriptions and/or single Issues of Titles by Mgazeti, provided that in no event shall Publisher directly or indirectly (whether itself, through authorized resellers or any other third party or otherwise) offer digital editions of Issues for distribution or on terms more favorable to the Reader than those terms offered through Mgazeti.
2.1.2 Publisher hereby agrees to permit its Titles to be included in the Mgazeti periodic subscriptions and/or single fixed-priced subscription or membership subscription program at a price determined by Mgazeti or the Publisher.
2.1.3 Publisher hereby agrees to permit Mgazeti to extract any and all stories from the Titles and publish them on any Mgazeti Platforms. These stories shall be monetized under the Mgazeti annual subscription platform by including these stories under pages read for each Title.
2.1.4 Publisher shall also determine whether any Issues are to be made available on Mgazeti without payment by the Reader, including by providing free access to digital versions of an Issue or Title provided to print subscribers (“Free-to-Read”).
2.1.5 Mgazeti will be entitled to offer Publisher Titles for a FREE 30-day trial. This could involve current or back issues.
2.1.6 The parties may mutually agree that Mgazeti may, in its discretion, directly or through a designee authorize and clear credit card orders for Titles or Issues and collect and remit funds to Publisher, or integrate with Publisher’s fulfillment processing operations. For any Titles offered by Mgazeti’s proprietary digital publishing, marketing, sales and distribution software and platform, Mgazeti shall be entitled to offer Reader discounts up to the same percentage of the fee as is represented by Mgazeti’s transaction fee.
2.2 Transaction Fee
2.2.1 In consideration for the standard production, marketing, customer support and fulfillment services provided by Mgazeti as specified in clause above, Mgazeti will retain a thirty (30%) percent Transaction Fee on the purchase, distribution or renewal of all Issue and Title orders that are sourced, distributed, sold or renewed by Mgazeti across Platforms (“Mgazeti Distributions”).
2.2.2 For purposes of this Agreement, “Transaction Fee” in relation to each Issue means such percentage of Net Revenue where the “Net Revenue” is:
2.3 Fee for Additional Services
2.3.1 The Mgazeti system is a self-service system where Publisher can upload Publisher’s Mgazeti approved file formats to the Mgazeti service. If Publisher needs customization or enhancements for any Issue or Title, Mgazeti charges additional fees, which must be agreed by the parties before the customization or enhancement is undertaken.
2.3.2 Mgazeti shall create a web accelerated application or stand-alone apps for various platforms such as Apple, Android and Amazon Kindle (as well as any new platforms that enter the marketplace), as per Mgazeti’s pre-determined app delivery template and the price for app development and maintenance would be determined during the time of app development. The date to go live and the approval of the app is subject to approval of said newsstand platforms.
2.3.3 If Publisher requests, and Mgazeti chooses to perform any services not expressly specified in this Agreement, Publisher shall pay Mgazeti’s then-current standard time and materials charges for such services, the scope of which would be mutually agreed upon and pricing approved by both parties before the work is undertaken.
2.4 Reporting, Payment Terms, and Taxes
2.4.1 The Publisher will be given access to real-time reporting from the Mgazeti website with adequate password protection of the reports.
2.4.2 Under this Agreement, Mgazeti will pay Publisher for Mgazeti Distributions every two months, in an amount equal to the Net Revenues less the Transaction Fees.
2.4.3 All payments from Mgazeti to the Publisher shall be made as two types depending on the location of the Publisher's bank account, (1.) International payouts and (2.) Domestic Kenyan payouts. All International payouts shall be made from Mgazeti to the Publisher only after the Net Revenue payable to the Publisher crosses KES 50,0000 (Fifty Thousand Kenya Shillings). Until such time, the Net Revenue payable to Publisher will be held by Mgazeti and no interest will be paid for this amount irrespective of the time it takes for such amount reach KES 50,0000. If the Publisher requires withdrawal of its share of Net Revenue before the amount reaches KES 50,0000, a processing fee of KES 4000 will be charged to the Publisher. All Domestic Kenyan payouts shall be made from Mgazeti to the Publisher only after the Net Revenue payable to the Publisher crosses KES 10,000 (Ten Thousan Kenya Shillings. Until such time, the Net Revenue payable to Publisher will be held by Mgazeti and no interest will be paid for this amount irrespective of the time it takes for such amount reach KES 10,000. If the Publisher requires withdrawal of its share of Net Revenue before the amount reaches KES 10,000, a processing fee of KES 4000 will be charged to the Publisher
2.4.4 Interest shall accrue on all payments received after the due date at the rate of the lesser of 0.50% per month or the highest rate allowable by applicable law.
2.4.5 In addition to the other rights and remedies set forth herein and otherwise available at law or in equity to Mgazeti, in the event Publisher does not pay any amount due and owing to Mgazeti in accordance with the terms of this Agreement, Mgazeti shall be entitled to set off any such amounts due and owing against any amounts that Mgazeti may owe to Publisher.
2.4.6 All amounts are stated in, and all payments shall be made in, Kenya Shillings. All payments under this Agreement shall be made through bank transfer to such accounts as may be identified by the Parties which may be changed by the party receiving the request upon 10 business days advanced written notice to the party making the wire.
2.4.7 Each party shall be responsible for and shall pay to the applicable governmental authority all sales taxes, value added taxes, and good and services taxes applicable to the distribution of Titles to Readers hereunder that are transacted by such party.
2.4.8 All other state or local use, property, excise, services or other taxes, domestic or foreign, now or hereafter levied attributable to this Agreement, on the provision of Mgazeti’s services hereunder or on Mgazeti Distributions (but excluding taxes payable on the net income or revenue of Mgazeti) shall be borne and paid by Publisher.
2.4.9 Payments shall be made to the Publisher’s bank and payments to Mgazeti shall be to:
For Payments to Convergence Africa Media Limited
Bank Name: Stanbic
Bank Branch & Address: Waiyaki Way Branch
Name on Bank Account: CONVERGENCE AFRICA MEDIA LIMITED
Bank Account Number: 0100008982378 KES
SWIFT Code: SBICKENX
Bank Code : 3100
Branch Code : 004
3.1 Publisher Content
3.1.1 Publisher retains sole ownership and responsibility for all Publisher Content, including without limitation content included on any Titles or Issues made available on the Mgazeti System pursuant to this Agreement. Without prejudice to the generality of the foregoing, Publisher represents and warrants to Mgazeti that all Publisher Content: (a) complies with applicable law and does not include any content or materials that are or are likely to be construed as amounting to as hate speech or content that is defamatory, libelous, obscene, or otherwise illegal, (b) does not invade any privacy rights or publicity rights of any person or entity, and (c) does not violate or infringe the intellectual property or other proprietary rights of any person or entity.
3.1.2 Provided that Publisher hereby appoints Mgazeti as (even as to itself) marketer, reseller and distributor of the (digitized) Issues of the Publisher’s Titles and related stories and Publisher Content generally and under any ‘all-you-can-read’ schemes or other ‘read-all-you-can’ subscription models, or pay per issue or periodic payment provided such schemes and models are offered by Mgazeti to customers (both businesses and individual), through the direct periodic purchases, annual fixed-price membership subscription program and for government and bulk orders and Publisher hereby grants to Mgazeti a corresponding royalty free, worldwide license to commercially exploit the Publisher Content in connection with the marketing, hosting, distribution, access and fulfillment of the Publisher Content to Readers and potential Readers on the devices and Platforms referred to in clause 1.1.1 and for all of the purposes and activities contemplated by this Agreement.
3.1.3 In the event any third party issues any notice to or makes any claim on Mgazeti in relation to any Publisher Content, then without limiting Mgazeti other rights and remedies under this Agreement, at law or in equity, Mgazeti shall be entitled unilaterally and without prior notice to Publisher, to remove such Publisher Content and to hold Publisher responsible for all costs and consequences thereof.
3.1.4 Mgazeti shall be entitled to place static or dynamic advertisements in the digital version of the Titles, provided that any net revenue earned by Mgazeti from such advertisements shall be liable to be shared in the following ratios:
3.1.5 Mgazeti shall be entitled to monetize your content via our eCommerce program in the digital version of the Titles, provided that any net revenue earned by Mgazeti from these initiatives shall be shared as per 3.1.4a and 3.1.4b.
3.1.6 Mgazeti shall be entitled to feature selected Publisher stories as well as videos in any Mgazeti owned or powered apps including but not limited to Mgazeti owned stand-alone stories-curation app, Mgazeti app which is designed to showcase Publisher content .
3.1.7 Publisher shall immediately notify Mgazeti if at any time Publisher receives notice of objection from a third party (including any licensor or from a regulatory authority) as to the transfer, collection, processing, or use of any Publisher Content.
3.2.1 Each party (“Licensor”) hereby grants to the other party (“Licensee”) a non-exclusive, royalty free, worldwide license to use its trademarks and logos (“Marks”), including, in the case of Publisher, the trademarks and logos of any of its affiliates and licensors that are implementing Titles or Issues in Mgazeti’s proprietary digital publishing, marketing, sales and distribution software and platform (“Mgazeti System”) to distribute, market, promote and provide access and fulfillment services for Titles and Issues as contemplated by this Agreement.
3.2.2 The Licensor may terminate or limit the foregoing license if, in the Licensor’s reasonable discretion, the Licensee’s use of the Licensor’s Marks tarnishes, blurs or otherwise dilutes the quality or goodwill associated with the Marks and such use is not cured within 10 days of receipt of a written notice thereof.
3.2.3 The Licensee shall use the Licensor’s Marks exactly in the form provided and pursuant to any style guidelines communicated to in and shall not take any action inconsistent with the Licensor’s ownership of its Marks.
3.2.4 Title to Licensor’s Marks, and all goodwill associated therewith, remains with the Licensor. Any benefits accruing from use of such Marks, including all goodwill associated therewith, shall automatically vest in the Licensor.
3.3 Reader Data
3.3.1 As between the parties, Publisher shall own all right, title and interest in and to the any fulfillment or other data about Readers it provides to Mgazeti for the purpose of fulfilling Title orders (“Fulfillment Data”).
3.3.2 Subject to the terms of this Agreement, Publisher grants Mgazeti a non-exclusive license to use the Fulfillment Data to perform its obligations hereunder, and supply marketing materials to Readers in connection with the access and fulfillment of Titles and Issues and at other times.
3.3.3 Publisher shall obtain from Readers sourced by Publisher, permission to supply the Fulfillment Data to Mgazeti, permission for Mgazeti to process and use the Fulfillment Data for the purposes of fulfilling the Reader’s purchase and for the other purposes set forth herein, and permission for Mgazeti to supply marketing materials to such Readers in connection with the access and fulfillment of Titles and Issues and at other times.
3.3.4 Publisher shall immediately notify Mgazeti if at any time Publisher receives notice of objection from a Reader or from a regulatory authority as to the transfer, collection, processing, or use of the Fulfillment Data.
3.3.5 As between the parties, Mgazeti shall own all right, title and interest in and to any fulfillment or other data about Readers that Mgazeti collects from Readers who register for a Mgazeti account or that Mgazeti otherwise collects from Readers in connection with this Agreement. Mgazeti shall continue to provide non-personally identifiable data through the online sales and distribution dashboard provided on the Mgazeti System to Publisher. However, in accordance with the Data Protection Act, the specific (personally identifiable) subscriber data that Mgazeti collects about subscribers to the Publisher’s Titles and Issues shall not be shared with Publisher. Publisher should take adequate measures to safeguard any subscriber data which Mgazeti might have shared with them before 25th November, 2019. Publisher should not use such data in a way that might intrude the privacy of users or for other commercial purposes.
3.4 Mgazeti System and Technology
3.4.1 Mgazeti retains exclusive control over its websites, content and any other digital media it operates, including without limitation the Mgazeti System and Mgazeti’s digital viewer and publication stand on any device or platform.
3.4.2 Mgazeti hosts and manages all data including publication files, user and subscription data in its secure cloud servers (provided by reputed third party vendors identified by Mgazeti from time to time). This data will be encrypted and securely stored on the servers and daily backups will be taken. The data will be accessed by the Mgazeti System to deliver a seamless end-user experience and will be handled only by authorized Mgazeti personnel with the required security clearances. . The Publisher hereby confirms that Mgazeti is not and shall not be liable for any piracy or other copyright violations of Publisher Content by any third party Readers or other third party users of the Platforms, including, without limitation, any external activity, such as screen shot captures to create PDF files, website and server hacks and all other acts of piracy by such Readers or other third party users. Provided that in the event Mgazeti learns of any such piracy, Mgazeti shall inform the Publisher thereof and provide the Publisher with details thereof (to the extent such details are known to and available to Mgazeti).
3.4.3 Mgazeti may, from time to time create new technologies to benefit publishers, distribution and sales, e.g., creation of white label applications or additional sales or distribution channels via various marketplaces or other services. It is clarified that the licenses granted under this Agreement to Mgazeti extend to distribution through such applications and sales channels. Mgazeti will own any and all technology and intellectual property created and used for such applications and distribution channels. The Publisher will have no rights over the intellectual property or the actual technology or technology piece or application created by Mgazeti for distribution to or provision of services to the Publisher. The Publisher will not create or allow to be created a competing white label app(s) in the same platform or device that Mgazeti has created its white label apps to sell the Publisher’s titles and issues for the period of this agreement. The Publisher hereby waives all rights and claims over such new technologies and applications created by Mgazeti even if such technologies or applications are co-branded with content provided by Publisher.
3.4.4 Mgazeti may, from time to time, come up with new monetization ideas and, as long as Publisher agrees to participate in such new monetization ideas, Publisher shall receive a share of revenue as per clause 3 of this agreement.
4.1.1 This Agreement shall be effective as of the date on which the Publisher signs or otherwise accepts this Agreement and shall continue for a period of 5 (five) years thereafter, unless terminated in accordance with the provisions of this Agreement.
4.1.2 After the initial term, this Agreement shall automatically renew for additional terms of the same period as the initial term unless either party delivers a termination notice at least 30 days prior to the end of the then-current term.
4.2.1 A party may terminate this Agreement by issuing written notice (“Termination Notice”) to the other party, if the other party breaches its obligations under this Agreement and does not cure such breach within thirty (30) days of being informed of the breach by the party issuing the Termination Notice, or if the other party is subject to any bankruptcy, liquidation, receivership, or administration proceedings filed voluntarily or by a secured creditor or is subject to the appointment of any liquidator or administrator by any competent court or tribunal.
4.2.2 Mgazeti shall be entitled to terminate this Agreement with immediate effect with respect to all or any Titles or Issues, by issue of a Termination Notice if the Publisher ceases to hold rights to enter into this Agreement with respect to such Titles or Issues.
4.3 Effect of Expiration or Termination
4.3.1 The expiration or termination of this Agreement shall not affect the rights of a party accrued prior to such termination.
4.3.2 Upon termination or expiration of this Agreement, Mgazeti will cease distribution of the Titles and Issues, but the parties mutually agree to extend this Agreement to allow Mgazeti to complete then existing subscription orders (in which case all licenses hereunder shall be deemed to survive termination or expiration for this limited purpose). Even in the case of termination, the Publisher agrees to make available to Mgazeti all the titles and issues that have unfinished subscriptions as on the date of the termination even though the titles and issues are removed from distribution. Mgazeti shall also continue to manage and maintain all subscriptions and white label apps for the same period above to fulfill unfinished subscriptions. Where a subscription has been purchased and paid for Mgazeti shall make the Titles accessible to paid subscribers for life.
4.3.3 The termination or expiration of this Agreement for any reason shall not terminate the obligation of one party to pay any amount due to the other party in respect of all periods through the date of termination or expiration. In addition, any terms of this Agreement that by their nature are intended to survive expiry or termination (such as provisions in relation to payment obligations, rights in intellectual property, these provisions on the effects of expiry or termination, remedies, governing law and jurisdiction and non-solicitation) shall survive such expiry or termination.
5.1.1 Publisher shall indemnify, defend and hold harmless Mgazeti, its affiliates and resellers, and their respective officers, directors, employees, and agents from all claims and threatened claims by any third party, including employees, and costs, damages or other losses suffered or arising out of, under or in connection with any act or omission of Publisher or its employees that is a breach of any provision of this Agreement or any representation provided by the Publisher under this Agreement, or that relates to the use of the Titles, the Publisher Content or delayed compliance or any failure to comply with any law, regulation, judgment, decree, award or contractual obligation applicable to or otherwise required to be observed or fulfilled by Publisher.
5.1.2 Mgazeti shall indemnify, defend and hold harmless Publisher, its affiliates and their respective officers, directors, and employees, from all claims and threatened claims by any third party, including employees, and costs, damages or other losses suffered or arising out of, under or in connection with any act or omission of Mgazeti or its employees that is a breach of any provision of this Agreement or any representation provided by Mgazeti under this Agreement, or that relates to the use of the Mgazeti System or delayed compliance or any failure to comply with any law, regulation, judgment, decree, award or contractual obligation applicable to or otherwise required to be observed or fulfilled by Mgazeti.
5.1.3 A party shall be entitled to all reasonable lawyers’ fees and costs in connection with enforcing any provision of this Agreement.
MGAZETI DISCLAIMS ALL WARRANTIES AND CONDITIONS (EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.3 Limitation of Liability.
5.3.1 In no event shall Mgazeti, its affiliates and resellers, and their respective officers, directors, employees, or agents be liable to Publisher, its affiliates and their respective officers, directors, and employees for any special, indirect, reliance-based, incidental, punitive or consequential damages of any kind, loss of goodwill, diminution in value, lost profits or lost revenue, whether arising in contract, tort (including negligence) or otherwise, even if Mgazeti, its affiliates or resellers, or their respective officers, directors, employees, or agents have been notified of the possibility thereof.
5.3.2 The aggregate liability of Mgazeti, its affiliates and resellers, and their respective officers, directors, employees, and agents for claims arising under or in any way in connection with this Agreement shall be limited to the fees paid to and retained by Mgazeti hereunder during the 12 month period immediately preceding the event or circumstances giving rise to the liability.
6.1 Force Majeure.
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, actions of governmental entities, riots, war, terrorism, fire or epidemics. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or sent by confirmed electronic mail, or after five (5) days after being sent by prepaid certified or registered mail or internationally recognized courier to the address of the party to be notified as set forth herein or such other address as such party last provided to the other by written notice.
6.3 Platform License Agreement.
This Agreement is subject to the terms and conditions of the Platform License Agreement, entered into by Mgazeti with the relevant Platform Licensor for use of each Platform such as Apple, Google, and others. In the event of any conflict between the provisions of this Agreement and the Platform License Agreement, the provisions of the Platform License Agreement shall prevail.
Mgazeti shall be entitled to perform all or any of the services contemplated by this Agreement directly or through its affiliates or third party sub-contractors in such manner as Mgazeti deems fit, and any licenses granted hereunder shall correspondingly extend to such affiliates and third party sub-contractors to the extent necessary to perform such services, subject always to the provision of this Agreement.
6.5 Independent Contractor Relationship
Mgazeti and Publisher’s relationship hereunder shall be as independent contractors to each other and not as agents, employees, joint ventures or partners of the other. Nothing in this Agreement shall, or shall be deemed to, constitute a partnership, consignor-consignee or employer-employee relationship between the parties or to constitute any party as the agent or trustee of the other for any purpose.
6.6.1 The Platform Licensor may update the terms of such Platform License Agreement from time to time. This Agreement shall be amended by Mgazeti to reflect such changes (“Platform License Changes”) as and when required and the Publisher shall be notified of the same. If Publisher does not respond within seven days of receipt of the Platform License Changes, the Publisher shall be deemed to have accepted such changes.
6.6.2 Mgazeti reserves the right to change its fees giving a notice of one month to the Publisher. If Publisher does not respond within seven days of receipt of the fee changes, the Publisher shall be deemed to have accepted such changes.
6.6.3 Unless otherwise expressly provided in this Agreement, no alteration of the terms and conditions of this Agreement shall be effected unless agreed by both parties. Mgazeti shall have the right to amend this agreement by giving notice via electronic email to the registered email id of the publisher in the Mgazeti system. If Publisher does not respond within seven days of receipt of the fee changes, the Publisher shall be deemed to have accepted such changes. If the Publisher does not agree to the changes, the Publisher has to notify Mgazeti of the same within 7 days of receipt of the above mentioned electronic mail failing which the Publisher will be then governed by updates proposed via the email.
Any party’s failure to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. A waiver may only occur in a writing signed by the party waiving a term or condition.
In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
6.9 Governing Law and Jurisdiction
6.9.1 The validity, interpretation, and performance of this Agreement shall be controlled by and construed under and in accordance with the laws of the Republic of Kenya, without giving effect to the principles of conflicts of law.
6.9.2 The courts in the Republic of Kenya shall have exclusive jurisdiction over any claims, controversies or disputes arising under this Agreement. Both parties to this Agreement consent to the jurisdiction of such courts.
During the term of this Agreement and for a period of three (3) months after termination, neither party shall solicit or otherwise offer employment to any employee or consultant of the other party.
This Agreement and the Services contemplated hereunder are personal to Publisher and Publisher shall not have the right or ability to assign, transfer, delegate or subcontract any rights or obligations under this Agreement without the written consent of Mgazeti. Any attempt to do so shall be void. Mgazeti shall be entitled to assign its rights or delegate its obligations hereunder to any third party at any time.
6.12 Confidential Information
The recipient of any Confidential Information will not disclose that Confidential Information except to affiliates, employees, agents and professional advisors who need to know the same and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep the same confidential. The recipient will ensure that all such persons use such Confidential Information only to exercise rights and fulfil obligations under this Agreement, and use reasonable care to protect the same. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law. “Confidential Information” means any and all information disclosed by (or on behalf of) one party to the other party under (or in connection with) this Agreement, but in any event, Confidential Information does not include information known by the recipient prior to such disclosure, information that becomes public through no fault of the recipient, and information that was independently developed by recipient or was lawfully provided to the recipient by a third party, in each case as documented by contemporaneous written records.
6.13 No Adverse Construction
No provision of this Agreement shall be construed against a party on the ground that it drafted or its agents drafted such provision.