Terms of Use
ARIFU PLATFORMS TERMS OF USE
BY BROWSING OUR WEBSITE AND/OR CLICKING OR TAPPING ANY BUTTON OR BOX MARKED “ACCEPT”, “AGREE” OR “OK” (OR A SIMILAR TERM) REFERENCING THESE TERMS, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND AFFIRM THAT (WHERE APPLICABLE) YOU ARE AN AUTHORIZED REPRESENTATIVE OF YOUR ORGANIZATION AND THAT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THESE TERMS.
Please read these terms of use (the “Agreement”) carefully. This Agreement is between you, as a content creator, content distributor and/or learner (“User”) (“you”) and Akengo Limited (“Arifu” or “we” or “us”). It contains important terms about your rights to use the Platforms (as defined below) and our obligations to you in relation to your Platform use.
Arifu is a social enterprise that provides both an education technology platform and a content digitization service that makes it possible for the least served people to access the information that they need from the organizations they trust on any mobile phone. Arifu has developed a web-based platform that enables the creation, design, publication and licensing of content, as well as related audience measurement tools (“Arifu CM”). Arifu enables this content to be made available to its Users on various other platforms and distribution channels (together with the Arifu CM and www.arifu.com, the “Platforms”).
This Agreement applies to your use of (including any access, transaction, or posting to and downloading from) the Platforms, including any materials and services available therein. This Agreement may differ depending on whether you intend to use the Platforms either (i) to create, upload and sell content (as a “Creator”); (ii) to launch a campaign by distributing content to your customer base or Arifu’s Learners (as a “Distributor”); or (iii) to access content (as a “Learner”). Arifu is committed to transparency, which includes providing an Agreement that is understandable and written in plain language. Arifu offers and markets the Platforms to business users rather than consumers. However, in jurisdictions where mandatory legislation dictates that you are to be considered a consumer, you may be afforded certain augmented rights under applicable local law; and, in such cases, this Agreement will not affect any applicable statutory consumer rights that cannot be waived under applicable law. This Agreement does not apply to your use and/or interaction with other services, such as [ ], provided by Arifu that are separate from the Platforms.
“Created Content” means any content created and uploaded to the Arifu CM by Creators, that is made available for access by all Users on the Platforms in accordance with this Agreement.
“Learner Content” means any content created by Learners on the Platforms, including but not limited to comments on the information provided on the Platforms.
“Distributor Content” means any content created by any Distributor and provided on the Platforms.
“User Content” means any Created Content, Distributor Content or Learner Content.
“Licensed Content” means any content available on the Arifu CM that has been licensed for use and/or distribution by Distributors.
This Agreement also includes our Privacy Policy, Cookies Policy, Data Processing Agreement, and any other documents referred to by those agreements, and they, as a whole, govern any and all of the access to the Platforms.
This Agreement is structured as follows:
Part I User Agreement applies to all Users of the Platforms;
Part II Content Creator Agreement applies to Creators only;
Part III Content Distributor Agreement applies to Distributors only;
Part IV Learner Agreement applies to Learners only; and
Part V Miscellaneous applies to all Users of the Platforms.
Part I – USER AGREEMENT
This part applies to all Users of the Platforms (unless as stated otherwise). References to “you” in this part shall mean all Users. “Parties” shall mean Arifu and Users collectively.
By using the Platforms, you are expressly agreeing to, and give your consent to be governed by this Agreement. If you do not agree with or wish to be bound by this Agreement, you must not use or access the Platforms in any way.
Rules of conduct
1.1 You may not do any of the following while accessing or using the Platforms::
post, transmit or otherwise make available through or in connection with the Platforms any materials that are or may be: (i) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (ii) defamatory, libelous, fraudulent or otherwise tortious; (iii) obscene, indecent, pornographic or otherwise objectionable; or (iv) protected by copyright, trade mark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner;
post, transmit or otherwise make available through or in connection with the Platforms any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;
use the Platforms for any purpose that is fraudulent or otherwise tortious or unlawful;
harvest or collect information about other Users of the Platforms;
access, tamper with, or use non-public areas of the Platforms (including content storage), Arifu’s computer systems, or the technical delivery systems of Arifu’s service providers;
use the Platforms for any commercial solicitation purposes, or transmit through or in connection with the Platforms, any spam, chain letters or other unsolicited communications;
interfere with or disrupt the operation of the Platforms or the servers or networks used to make the Platforms available, including by hacking or defacing any portion of the Platforms (including any content available thereby); or violate any requirement, procedure or policy of such servers or networks; or disable, interfere with, or try to circumvent any of the features of the Platforms related to security or probe, scan, or test the vulnerability of any of our systems or otherwise engage in any activity that would interfere with or damage or harm the Platforms;
restrict or inhibit any other person from using the Platforms;
reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, distribute or otherwise exploit any portion of the Platforms except as expressly authorised herein, or as explicitly stated on the Platforms, without Arifu’s express prior written consent;
reverse engineer, decompile or disassemble any portion of the Platforms, except to the extent that such restriction is expressly prohibited by applicable law;
remove any copyright, trade mark or other proprietary rights notice from the Platforms;
frame or mirror any portion of the Platforms, or otherwise incorporate any portion of the Platforms into any product or service, without Arifu’s express prior written consent;
use any robot, spider, Platforms search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or otherwise gather Arifu IPR, or reproduce or circumvent the navigational structure or presentation of the Platforms, without Arifu’s express prior written consent; or
in any way use the services to send altered, deceptive, or false source-identifying information (such as sending email communications falsely appearing as Arifu).
1.2 You shall ensure that any User Content provided by you for which you are responsible:
is not in breach of any applicable law or regulation, or code of practice adopted by any applicable industry regulator or any policy or conditions which may be communicated to the Content Creator or Distributor by Arifu;
is not in breach of confidentiality, privacy or any rights of a third party;
is not against public interest, public order or national harmony;
is not prejudicial in any manner to the business interests of Arifu, or any of the parties thereunder;
does not and will not plagiarize another person’s work; and
has not been assigned or pledged to a third party, or otherwise encumbered.
1.3 Arifu may, but has no obligation to, monitor any User Content that appears on the Platforms or review any conduct occurring through the Platforms. We are not obliged to update the courses or related materials made available as part of the Platforms.
Changes to the platforms and this agreement
2.1 The Platforms may be updated and developed continuously over time. Arifu may modify the Platforms without prior notice where such modifications do not, in the reasonable opinion of Arifu, materially change the functionality of the Platforms. Subject to any terms in any other agreement between you and Arifu, you may at any time discontinue your use of the Platforms following any such modifications made by Arifu. You shall have no claims against Arifu due to modifications to the Platforms within the scope of this section 2.1.
2.2 Arifu reserves the right to change or amend this Agreement at any time without notice unless such change/amendment would, in the reasonable opinion of Arifu, materially reduce/prejudice your rights under this Agreement. Any change/amendment will show on the Platforms at least ten (10) days prior to its effective date.
2.3 If you object to any change/amendment to this Agreement referred to in section 2.2, you have the right, subject to any terms in any other agreement between you and Arifu, to discontinue your use of the Platforms following any such changes/amendment made by Arifu. You shall have no claims against Arifu due to the changes/amendments within the scope of section 2.2.
2.4 If Arifu wishes to change or amend this Agreement in a manner which would, in the reasonable opinion of Arifu, materially reduce/prejudice your rights under this Agreement, it shall provide you notice of such intended changes by email and you may, within 10 days of such notification, object to such change/amendment. If you do not object within this 10 day period, you will be deemed to have accepted the change/amendment. If you do object within this 10 day period, such change/amendment will not apply to you but Arifu or you may, subject to any other agreement between you and Arifu, terminate your use of the Platforms.
ARIFU’S RIGHTS
3.1 By entering into this Agreement, you agree to grant to Arifu the rights to offer, market, and otherwise exploit any User Content on the Platforms. Where applicable, this includes the right to add captions, translate or otherwise modify Created Content or Licensed Content to ensure accessibility. You may also authorize Arifu to sublicense these rights to third parties, including to users/learners directly and through third parties such as resellers, distributors, affiliate sites, deal sites, and paid advertising on third-party platforms.
3.2 Arifu may record and use all or any part of the User Content for quality control and for delivering, marketing, promoting, demonstrating, or operating the Platforms. You grant to Arifu permission to use your name, likeness, voice, and image in connection with offering, delivering, marketing, promoting, demonstrating, and selling the Platforms’ services, the Created Content or Licensed Content, or Arifu’s content, and you waive any rights of privacy, publicity, or other rights of a similar nature, to the extent permissible under applicable law.
3.3 Arifu may limit the availability of the Platforms to any person or geographic area at any time. If you choose to access the Platforms from outside the geographic areas where Arifu makes the Platforms available, you do so at your own risk and you may be in breach of this Agreement or applicable law.
OBLIGATIONS OF THE PARTIES
As a User, you:
agree to comply with all legal requirements in connection with the use of the Platforms;
will be responsible for all the User Content posted by you or on your behalf, including quizzes, practice tests, resources, answers, assessments, and announcements;
will not post or transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or any other form of solicitation (commercial or otherwise) through the Platforms or to any User;
will not engage in any activity that would require Arifu to obtain licenses from or pay royalties to any third party, including the need to pay royalties for the public performance of a musical work or sound recording;
will not frame or embed the Created Content or Licensed Content (such as to embed a free version of a course) or otherwise circumvent the Platforms approved content categories;
are responsible for making all arrangements, and for providing appropriate resources and equipment, necessary to ensure that you have access to the Platforms;
are responsible for ensuring that all persons who access the Platforms through your Account are aware of this Agreement and other applicable terms and conditions, and that they comply with them;
will not abuse Arifu resources, including support services.
4.2 Arifu will endeavor to monitor the functionality of the Platforms and will use commercially reasonable efforts, periodically or within a reasonable time, to correct any defects in the Platforms and to maintain, improve or modify the Platforms to the extent that the Platforms (whether as a result of such defects or otherwise):
no longer substantially performs their key functions; or
otherwise fail to function materially in accordance with any specification, thereby rendering your use of the Platforms impossible.
4.3 Arifu’s sole obligation with respect to the unavailability or interruption of the Platforms is set out in section 4.2. In no other circumstances will Arifu be liable to you, for any reason, if the Platforms is unavailable at any time or for any period.
4.4 Access to the Platforms is permitted and offered on a temporary basis, and Arifu does not guarantee that the Platforms will be always available or be uninterrupted. Further, you acknowledge that the Platforms are provided to you on an “as is” basis and may not be free from errors or bugs.
4.5 Arifu may provide reasonable on-going assistance to Users with regard to technical, administrative and service-oriented issues relating to the use of the Platforms.
INDEMNIFICATION
5.1 If you are using the Platforms as a Creator, to the fullest extent permitted under applicable law, you agree to indemnify Arifu, its officers, directors and employees from and against all claims, actions, proceedings, losses, damages, expenses, costs (including, without limitation, court costs and reasonable legal fees) and any infringement or alleged infringement of any third party intellectual property rights (“IPR”) arising out of or in connection with (a) your use of, or activities in connection with the Arifu CM or (b) any breach of this Agreement by you.
5.2 If you are using the Platforms as a Distributor or a Learner, you agree that you will be liable to Arifu for (a) your use of, or activities in connection with the Platforms; or (b) any breach of this Agreement by you. This means that you will be responsible for any loss or damage that we suffer as a result of your use of the Platforms or your breach of this Agreement.
5.3 If Arifu’s use or possession of User Content is held by a court of competent jurisdiction to constitute an infringement of a third party’s IPR, or, if at any time an allegation of infringement of IPR is made in respect of the IPR or, if in your reasonable opinion such an allegation is likely to be made, you may at its own expense carry out the activities below and if you are successful, and the performance of the IPR has not been materially adversely affected, it shall be in full and final satisfaction of its obligations to Arifu:
obtain for Arifu a right to continue using the IPR; or
modify or replace the IPR so as to avoid the infringement, without detracting from overall performance, in which case you will make good to Arifu any loss of use during modification or replacement.
5.4 If the remedies set out above are not in your opinion reasonably available, then Arifu shall return the IPR and you shall refund to Arifu the corresponding portion of the price, as normally depreciated, whereupon this Agreement shall immediately terminate.
TERMINATION, SUSPENSION AND REMOVAL OF CONTENT
6.1 If you close your account, Arifu may keep a copy of your User Content after termination. You grant to us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for compliance with any relevant laws and regulations and for our internal business purposes, subject to applicable law.
6.2 Arifu reserves the right to remove you and your User Content without warning if you violate any of the provisions of this Agreement.
6.3 Arifu may, in its discretion, require you to immediately remove any User Content from the Platforms if, at any time, Arifu determines that either (i) you have breached this Agreement; or (ii) your continued association with Arifu is prejudicial and damaging to the business or reputation of Arifu.
6.4 Arifu has discretion in enforcing this Agreement. We may restrict or terminate your permission to use the Platforms or suspend your account at any time, with or without notice, for any or no reason, including (i) any violation of this Agreement; (ii) unexpected technical issues or problems; (iii) if we suspect that you engage in fraudulent or illegal activities; or (iv) for any other reason. Upon any such termination, we may delete your account and User Content, and we may prevent you from further access to the Platforms. Your User Content may still be available on the Platforms even if your account is terminated or suspended. We usually do this to the extent necessary to honour the rights of any Licensor (as defined below) or to ensure our compliance with any agreements with other Users. If you are a Creator or Distributor, your Created Content or Licensed Content will not be available for access by new Distributors or Learners. You agree that we will have no liability to you or any third party for termination of your account, removal of your User Content, or blocking or suspension of your access to our platforms and services.
6.5 On expiry or termination of this Agreement:
the rights granted by one party to the other shall immediately cease and you must cease all activities authorized by this Agreement;
Arifu may retain certain User Content (in accordance with the Privacy Policy); and
Arifu shall cease providing you with access to the Platforms.
6.6 Nothing in this section 6 limits any mandatory statutory rights that might apply to you and which may enable you to terminate this Agreement for valid cause.
THIRD PARTY CONTENT
7.1 The Platforms as well as User Content may contain references and links to resources that are not owned by us (“Third Party Resources”). We neither control nor endorse, nor are we responsible for, any Third Party Resources, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Resources, or any intellectual property rights therein. Nothing in this Agreement will be deemed to be a representation or warranty by Arifu with respect to any Third Party Resources, including in relation to the security of any information (including credit card or other personal information) that you might be requested to provide as part of your use of a Third Party Resource. We have no obligation to monitor Third Party Resources, and we may block or disable access to any Third Party Resources (in whole or part) through the Platforms at any time. In addition, the availability of any Third Party Resources through the Platforms does not imply our endorsement of, or our affiliation with, any provider of such Third Party Resources even if such Third Party Resources are marketed or distributed via the Platforms or any of the other material provided by us, nor does such availability create any legal relationship between you and any such provider. It is your responsibility to carry out your own investigations on third parties and Third Party Resources before proceeding with any transactions on, or using, such Third Party Resources.
7.2 Links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. We have no control over the contents of those sites or resources.
PAYMENTS
8.1 This Agreement sets out basic terms of payment (where applicable). Arifu may from time to time, issue a separate policy setting out further terms of payment. You will receive notice of any new policies, as well as where you can access them.
8.2 Unless otherwise stated in this Agreement, any other fees payable by you to Arifu or vice versa, in relation to your usage of our Platforms or Services will be provided to you before purchase and will be visible in your receipt or confirmation of purchase.
8.3 All payments are to be made in United States Dollars, except where other currencies are made available by Arifu.
DISCLAIMER OF WARRANTIES
The Platforms and any User Content are made available to you without any warranties of any kind, except with regard to defects that have been fraudulently concealed by Arifu. To the maximum extent permitted by any applicable law, we exclude all conditions, warranties, representations or other terms which may apply to the Platforms or any content on it, whether express or implied. All disclaimers of any kind (including in this section 9 and elsewhere in this Agreement) are made for the benefit of both Arifu and its affiliates and their respective owners, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers, and their respective successors and assigns.
LIMITATION OF LIABILITY
10.1 All claims against Arifu for compensation or damages and reimbursement of expenditures, regardless of the legal nature of the respective claim (e.g., contractual claims, loss, liability, claims arising from tortious acts or under competition law) (collectively “Damages”) are subject to the limitations of liability set out in this section 10.
10.2 Nothing in this Agreement excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
10.3 We will not be liable to you for any Damages (including any direct, indirect or consequential Damages of any kind, or Damages for diminution of value, business interruption, loss of profits, loss of revenue, loss of business, loss of use or data, or loss of goodwill), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with your use of, or inability to use, the Platforms, or your use of or reliance on the resources or User Content on the Platforms.
10.4 Your sole and exclusive remedy for dissatisfaction with the Platforms is to stop using Platforms and/or request that Arifu terminate your account in accordance with section 6 of Part I.
10.5 We will not be liable for any Damages caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, mobile device, computer programs, data or other proprietary material due to your use of the Platforms or to its downloading of any content on the Platforms, or on any website linked to the Platforms, except to the extent that any such liability cannot be excluded or limited by any applicable law.
10.6 Our entire liability for Damages under this Agreement (aside from the exceptions detailed in section 6.2 of Part III and section 3.3 of Part IV, where applicable) shall be limited to (i) where you are a Creator, the Net Amount of payments received by you from Arifu in that preceding twelve (12) month period or (ii) where you are a Distributor, the total value of payments for Licensed Content you have paid to Arifu in that preceding twelve (12) month period.
REMEDIES FOR VIOLATION
Arifu reserves the right to seek all remedies available at law and in equity for violations of this Agreement including but not limited to removing you from the platform, the right to block or suspend access to the Platform from a particular IP address or other user identifier, or to refer the violation to the appropriate law enforcement authorities.
Part II – CREATOR AGREEMENT
This part applies to Creators who use the Arifu CM to create, upload and share content. References to “you” in this part shall mean Creators only; “Parties” shall mean Arifu and Creators collectively. Arifu wishes to permit Creators to produce Created Content in accordance with this Agreement.
ACCOUNT
1.1 Creators need an account to access the Arifu CM. When setting up and maintaining your account, you must provide and continue to provide accurate and complete information. You have complete responsibility for your account and everything that happens on your account, including for any harm or damage (to us or anyone else) caused by someone using your account without your permission. This means you need to be careful with your password. You may not transfer your account to someone else or use someone else’s account. You will not impersonate another person or gain unauthorized access to another person’s account. If you contact us to request access to an account, we will not grant you such access unless you can provide us with the information that we need to prove you are the owner of that account. In the event of the death of a user, the account of that user will be closed.
1.2 You may not share your account login credentials with anyone else. You are responsible for what happens with your account and Arifu will not intervene in disputes between parties who have shared account login credentials. You must notify Arifu immediately upon learning that someone else may be using your account without your permission (or if you suspect any other breach of security) by contacting Arifu support team. We may request some information from you to confirm that you are indeed the owner of your account.
1.3 You may use the Arifu CM only if you are eighteen (18) years or older and capable of forming a binding contract, and are not otherwise barred from using the Services under applicable law. If you are below this age of consent to use online services, you may not create an Arifu CM account. If we discover that you have created an account that violates these rules, we will terminate your account. You may be requested to verify your identity before you are authorized to submit Created Content for publication on Arifu CM. Any personal information, if any, dealt with under this Agreement will be in accordance with our Privacy Policy.
1.4 You can terminate your account at any time by simply sending an email with the subject “RE: Delete Account” to marketplace@arifu.com. Deleting your account means that:
you will lose all the data and content in that account, such as Created Content, courses, certificates, files, invoices, photos, audio and videos;
you will not be able to use any Arifu CM services where you sign in with that account; and your account, your profile and content will not be visible on Arifu CM anymore;
you will need to create a new account in order to access any Arifu CM services because your former account will have been permanently deleted.
1.5 Arifu reserves the right to access your account and Created Content in order to respond to requests for technical support, to maintain the safety and security of the platform, and for other legitimate business purposes, as necessary, at Arifu’s discretion.
GRANT OF LICENSE
Arifu grants to you a limited, non-exclusive license to access and use Arifu CM for content creation, design and publication. This license is only for your use and may not be assigned or sublicensed to anyone else, without Arifu’s express written consent. All rights not expressly granted by Arifu are reserved.
OBLIGATIONS OF CONTENT CREATORS
3.1 You will be responsible for all the Created Content posted, including quizzes, practice tests, resources, answers, assessments, and announcements.
3.2 You will not frame or embed the Created Content (such as to embed a free version of a course) or otherwise circumvent the Arifu CM approved content categories.
3.3 You will not interfere with or otherwise prevent other Content Creators from providing their services or content.
3.4 You shall be entitled to translate the Created Content into any language of your preference at your cost. Such translations shall be owned by you. Where any variations, modifications and translations are done by Arifu or any other party to your Created Content, such shall be owned by you.
3.5 You shall be responsible for pricing your Created Content. When submitting your Created Content as available for license on the Arifu CM, you will be prompted to insert a price for the Created Content (the “Content License Fees”). Alternatively, you may choose to offer your Created Content for free.
DELETION OF CONTENT
Unless otherwise agreed, you have the right to remove all or any portion of any Created Content from the Arifu CM at any time. Except as otherwise agreed, Arifu’s right to sublicense the rights set out in section 2 of Part III will terminate with respect to new Distributors and Learners sixty (60) days after the removal of such Created Content. However, (i) rights given to licensees before the removal will continue in accordance with the terms of those licenses (including any grants of lifetime access) and (ii) Arifu’s right to use such content for marketing purposes shall survive termination.
INTELLECTUAL PROPERTY RIGHTS (IPR) OWNERSHIP
5.1 “Arifu IPR” means Arifu logos, Platforms, Arifu CM comprising Arifu’s proprietary digital learning system that uses the Internet and other mobile technologies to offer learning experiences to individuals and analytics to partners using content, including all updates, new releases, improvements, enhancements, additions to, modifications and derivative works thereof, whether or not created as part of the services and; Arifu Tools, as listed here, comprising any and all of Arifu’s proprietary information and know-how not in the public domain used by Arifu in the conduct of its business, including technical information, designs, templates, software and software modules, processes, methodologies, systems used to create computer programs or software, procedures, code books, computer programs, plans or any other similar information, including improvements, modifications, and developments thereto, including tools discovered or created by Arifu in connection with provision of the services.
“Arifu Tools” means additional functionalities offered via the Platforms that may include access to third-party sites.
5.2 “Creator IPR” means Created Content and trademarks. Content that you as a Creator upload to the Arifu CM is and remains your content. Arifu does not claim any IPR over the materials you upload to the Arifu CM platform by virtue of your use of Arifu services. By uploading your Created Content to the Arifu CM, you agree that:
Arifu may review, vet and edit the finished content for compliance and acceptability before publication. Any modifications requested by Arifu shall be complied with. No publication shall be done without Arifu’s prior approval.
Where you opt to license your Created Content to Arifu or other third parties, Arifu may display or sub-license your Created Content to other Users via the Platforms.
By uploading your Created Content to our Platforms, you are allowing Arifu to store your content.
To provide Arifu with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g, to display or transmit) your Created Content in furtherance of the Arifu services.
You are responsible for and either (i) own, or (ii) have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the Creator IPR, all of your Creator IPR.
Your Created Content will be visible to and licensable by other Platform Users and customers in accordance with the privacy and licensing settings you select for your Created Content. If your Created Content is licensed to other parties, it may be distributed by each licensee on the Platforms using any of Arifu’s distribution channels including but not limited to SMS, WhatsApp, Telegram, Facebook Messenger, Interactive Voice Response, and API to other third party platforms.
Your Created Content does not infringe upon anyone else’s Creator IPR.
5.3 Rights attached to your Creator IPR
Arifu acknowledges that you own all rights, title and interest to your Creator IPR. Arifu agrees not to do anything inconsistent with such ownership and all uses of your IPR will inure to your benefit.
Nothing in this Agreement shall grant to Arifu any right of ownership in your IPR. No licenses are granted by either Party except for those expressly set forth herein.
You acknowledge and agree that Arifu owns all rights, title and interest in all Arifu IPR. Nothing in this Agreement shall grant you any license or right of ownership in Arifu IPR. You shall not now or in the future contest the validity of Arifu IPR.
You shall immediately notify Arifu in writing of any suspected, threatened, or actual infringement of copyright, and in any event not later than 48 hours of its occurrence.
PAYMENTS
6.1 Your access to the Arifu CM shall be free of charge.
6.2 Arifu has the exclusive right to collect all Content License Fees from Licensors (as defined below). Your compensation shall be by way of a revenue share model as described below.
6.3 When a Distributor (each a “Licensor”) sub-licenses your Created Content, Arifu will calculate the gross amount of the Content License Fees as the amount actually received by Arifu from the Licensor (“Gross Amount”). From this, Arifu will subtract any transaction taxes, any mobile platform fees applied to mobile provider checkout sales, a service and processing fee for any non-mobile provider checkout sales, and any amounts paid to third parties in connection with the promotional programs to calculate the net amount of the sale (“Net Amount”); your revenue share will be 80% of the Net Amount.
6.4 If Arifu changes this payment rate, Arifu will provide you with thirty (30) days’ notice as provided in this Agreement.
6.5 If you carry out any campaigns for your content, you will be subject to the standard Arifu fees associated with campaign launches which include but are not limited to SMS, platform and learner charges.
6.6 For Arifu to pay you in a timely manner, you must own a duly registered mobile money phone number, active bank account, or PayPal and you must keep us informed of the correct email associated with your account. You must also provide any identifying information or tax documentation (such as a PIN or TIN, W-9 or W-8) necessary for the payment of amounts due, and you agree that we have the right to withhold appropriate taxes from your payments. Arifu reserves the right to withhold payments or impose other penalties if we do not receive proper identifying information or tax documentation from you. You understand and agree that you are ultimately responsible for any taxes on your income.
6.7 Depending on the applicable revenue share model, payment will be made within forty-five (45) days of the end of the month in which we receive the Content License Fees. All payments made to you will be made in United States Dollars. Arifu will not be obliged to make a payment if the total amount to be paid to a Creator under this Agreement is less than $20, and may instead accrue such payment obligation until such time as its overall obligation to a Creator is at least $20.
6.8 As a Creator, you are responsible for determining whether you are eligible to be paid by a Kenyan company or companies incorporated in jurisdictions where Arifu is carrying out its business where applicable. We reserve the rights to (i) not pay out funds in the event of identified fraud, violations of intellectual property rights, or other violations of the law and (ii) offset any amounts owed by you to Arifu against any amounts owing from Arifu to you, whether under this Agreement or otherwise.
6.9 If Arifu cannot settle funds into your payment account after the period of time set forth by your state, country, or other government authority in its unclaimed property laws, we may process the funds due to you in accordance with our legal obligations, including by submitting those funds to the appropriate government authority as required by law.
6.10 You are responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the Agreement, or use of the Arifu CM.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
7.1 You represent and warrant to Arifu that you have the required qualifications, credentials, and expertise (including education, training, knowledge, and skill sets) to upload any Created Content.
7.2 As of the date hereof each Party represents and warrants, and at all times during the term of this Agreement each Party shall be deemed to be continuously representing and warranting, to the other Party that: (a) such Party is duly organized and validly existing under the applicable laws of the jurisdiction of its organization or formation, such Party’s acceptance of this Agreement and the performance of all obligations contemplated hereunder have been duly authorized by all necessary action of such Party, and that each person accepting this Agreement on such Party’s behalf has been duly authorized by such Party to do so, and (b) each Party has the power and authority to enter into and perform its obligations under this Agreement and by doing so they are not in breach of any obligation to or right of a third party; (c) this Agreement constitutes such Party’s legal, valid and binding obligation, enforceable against such Party in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability regarding creditors’ rights.
PART III – DISTRIBUTOR AGREEMENT
This part applies to Distributors who use the Arifu CM to access and distribute Licensed Content. References to “you” in this part shall mean Distributors only; “parties” shall mean Arifu and Distributors collectively.
ACCOUNT
1.1 Distributors need an account to access the Platforms. When setting up and maintaining your account, you must provide and continue to provide accurate and complete information. You have complete responsibility for your account and everything that happens on your account, including for any harm or damage (to us or anyone else) caused by someone using your account without your permission. This means you need to be careful with your password. You may not transfer your account to someone else or use someone else’s account. You will not impersonate another person or gain unauthorized access to another person’s account. If you contact us to request access to an account, we will not grant you such access unless you can provide us with the information that we need to prove you are the owner of that account. In the event of the death of a user, the account of that user will be closed.
1.2 You may not share your account login credentials with anyone else. You are responsible for what happens with your account and Arifu will not intervene in disputes between parties who have shared account login credentials. You must notify Arifu immediately upon learning that someone else may be using your account without your permission (or if you suspect any other breach of security) by contacting Arifu support team. We may request some information from you to confirm that you are indeed the owner of your account.
1.3 You may use the Platforms only if you are eighteen (18) years or older and capable of forming a binding contract, and are not otherwise barred from using the services under applicable law. If you are below this age of consent to use online services, you may not create an Arifu CM account. If we discover that you have created an account that violates these rules, we will terminate your account. You may be requested to verify your identity before you are authorized to license Created Content for publication on Arifu CM.
1.4 You can terminate your account at any time by simply sending an email with the subject “RE: Delete Account” to marketplace@arifu.com. Deleting your account means that:
you will lose all the data and content in that account, such as Licensed Content, courses, certificates, files, invoices, photos, audio and videos;
you will not be able to use any Arifu CM services where you sign in with that account; and your account, your profile and content will not be visible on Arifu CM anymore;
you will need to create a new account in order to access any Arifu CM services because your former account will have been permanently deleted.
1.5 Arifu reserves the right to access your account, Distributor Content and/or Licensed Content in order to respond to requests for technical support, to maintain the safety and security of the platform, and for other legitimate business purposes, as necessary, in Arifu’s discretion.
GRANT OF LICENSE
Subject to section 3, Arifu grants to you a limited, non-exclusive license to launch a campaign by accessing the Arifu CM and the Created Content contained therein, and to further license Created Content in order to distribute it to Learners. This license is only for your use and may not be assigned or sublicensed to anyone else, without Arifu’s express written consent. All rights not expressly granted by Arifu are reserved.
OBLIGATIONS OF DISTRIBUTORS
3.1 You will not distribute or share the Licensed Content via any channels not provided for in the Arifu CM.
3.2 You shall be entitled to translate the Licensed Content into any language of your preference at your cost; and can do so with Arifu or other third party sub-contractors you engage; however such translations shall remain the property of the relevant creator of the Licensed Content.
3.3 You are permitted to require your customers to pay a fee to access the Licensed Content. However, Learners on the Platforms will access Licensed Content free of charge.
3.4 Licenses to Licensed Content are granted on the terms shown to you before purchase and are also detailed in your receipt. You agree to abide by that licenses terms in addition to this Agreement.
INTELLECTUAL PROPERTY RIGHTS (IPR) OWNERSHIP
4.1 “Arifu IPR” means Arifu logos, Platforms, Arifu CM comprising Arifu’s proprietary digital learning system that uses the Internet and other mobile technologies to offer learning experiences to individuals and analytics to partners using content, including all updates, new releases, improvements, enhancements, additions to, modifications and derivative works thereof, whether or not created as part of the services and; Arifu Tools comprising any and all of Arifu’s proprietary information and know-how not in the public domain used by Arifu in the conduct of its business, including technical information, designs, templates, software and software modules, processes, methodologies, systems used to create computer programs or software, procedures, code books, computer programs, plans or any other similar information, including improvements, modifications, and developments thereto, including tools discovered or created by Arifu in connection with provision of the services.
4.2 “Distributor IPR” means Distributor Content and trademarks. Content that you, as a Distributor, upload to the Arifu CM is and remains your content. Arifu does not claim any IPR over the materials that you upload to the Arifu CM platform by virtue of your use of Arifu services. By uploading your Distributor Content to the Arifu CM, you agree that:
Arifu may review, vet and edit the finished content for compliance and acceptability before publication. Any modifications requested by Arifu shall be complied with.
By uploading your Distributor Content to our Platforms, you are allowing Arifu to store your content.
You grant to Arifu all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g. to display or transmit) your Distributor IPR in furtherance of the Arifu services.
You are responsible for and either (i) own, or (ii) have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the Distributor IPR, all of your Distributor IPR.
4.3 Rights attached to your Distributor IPR
Arifu acknowledges that you own all rights, title and interest to your Distributor IPR. Arifu agrees not to do anything inconsistent with such ownership and all uses of Distributor IPR will inure to your benefit.
Nothing in this Agreement shall grant to Arifu any right of ownership in your IPR. No licenses are granted by either Party except for those expressly set forth herein.
You acknowledge and agree that Arifu owns all right, title and interest in all Arifu IPR. Nothing in this Agreement shall grant you any license or right of ownership in Arifu IPR. You shall not now or in the future contest the validity of Arifu IPR.
You shall immediately notify Arifu in writing of any suspected, threatened, or actual infringement of copyright, and in any event not later than 48 hours of its occurrence.
PAYMENTS
5.1 Your access to the Arifu CM shall be free of charge.
5.2 In order to license Created Content on the Arifu CM and distribute it, you will pay the relevant fee stated on the Arifu CM. The terms of such a license will be provided to you before purchase and be visible in your receipt or confirmation of purchase.
5.3 As a Distributor, you are responsible for determining whether you are eligible to pay a Kenyan company or companies incorporated in jurisdictions where Arifu is carrying out its business where applicable.
USE OF LICENSED CONTENT
6.1 The Arifu CM makes available the Created Content to you to license and distribute on our Platforms. We make no representations as to the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of any or all of the Created Content and the Platforms, or any intellectual property rights therein. Please seek the advice of professionals, as appropriate, regarding the evaluation of any Created Content and before choosing to purchase a license for distribution. Licensed Content and Created Content is subject to change at any time without notice. However, rights and obligations attached to Licensed Content and Created Content before such changes are made will continue in accordance with the terms set out in this Agreement.
6.2 We disclaim all liability and responsibility arising from any reliance placed on any Licensed Content by you and your customer base, or any other User of the Platforms, or anyone who may be informed of the content of any Licensed Content, except with regard to defects of such Licensed Content that were known by us and fraudulently not disclosed by us.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
As of the date hereof each Party represents and warrants, and at all times during the term of this Agreement each Party shall be deemed to be continuously representing and warranting, to the other Party that: (a) such Party is duly organized and validly existing under the applicable laws of the jurisdiction of its organization or formation, such Party’s acceptance of this Agreement and the performance of all obligations contemplated hereunder have been duly authorized by all necessary action of such Party, and that each person accepting this Agreement on such Party’s behalf has been duly authorized by such Party to do so, and (b) each Party has the power and authority to enter into and perform its obligations under this Agreement and by doing so they are not in breach of any obligation to or right of a third party; (c) this Agreement constitutes such Party’s legal, valid and binding obligation, enforceable against such Party in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability regarding creditors’ rights.
PART IV – LEARNER AGREEMENT
This part applies to Learners who use the Platforms to access or purchase information, resources and Created Content. References to “you” in this part shall mean Learners only; “parties” shall mean Arifu and Learners collectively.
GRANT OF LICENSE
Arifu grants to you a limited, non-exclusive license to access the Platforms and the content contained within the Arifu CM. This license is only for your use and may not be assigned or sublicensed to anyone else, without Arifu’s express written consent. All rights not expressly granted by Arifu are reserved.
INTELLECTUAL PROPERTY RIGHTS (IPR) OWNERSHIP
2.1 “Arifu IPR” means Arifu logos, Platform and Arifu CM comprising Arifu’s proprietary digital learning system that uses the Internet and other mobile technologies to offer learning experiences to individuals and analytics to partners using content, including all updates, new releases, improvements, enhancements, additions to, modifications and derivative works thereof, whether or not created as part of the services and; Arifu Tools comprising any and all of Arifu’s proprietary information and know-how not in the public domain used by Arifu in the conduct of its business, including technical information, designs, templates, software and software modules, processes, methodologies, systems used to create computer programs or software, procedures, code books, computer programs, plans or any other similar information, including improvements, modifications, and developments thereto, including tools discovered or created by Arifu in connection with provision of the services.
2.2 You acknowledge that all Arifu IPR belong to us or our licensors. You have no rights in, or to, the Platforms other than the right to access it in accordance with this Agreement.
2.3 Learner Content
You will retain all intellectual property rights to any Learner Content, but you grant to Arifu the right to use, freely deal with, which includes alter, analyse, publicly display or reproduce Learner Content, and to distribute that content on the Platform, any other Arifu channel or to third parties, including third party marketing. You warrant that you are the owner of, or have the right to use, all Learner Content, and that you have the right to license such right to Arifu in accordance with this Agreement. Any personal information, if any, dealt with under this Agreement will be in accordance with our Privacy Policy.
Arifu may review, vet and edit any Learner Content.
Arifu acknowledges that you own all rights, title and interest to Learner Content. Arifu agrees not to do anything inconsistent with such ownership and all uses of your Learner Content will inure to your benefit.
Nothing in this Agreement grant you any license or right of ownership in Arifu IPR. You shall not now or in the future contest the validity of Arifu IPR.
You shall immediately notify Arifu in writing of any suspected, threatened, or actual infringement of copyright, and in any event not later than 48 hours of its occurrence.
USE OF LICENSED CONTENT
3.1 The Platforms make available Licensed Content to you. We make no representations as to the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of any or all of the Licensed Content and the Platforms, or any intellectual property rights therein. Please seek the advice of professionals, as appropriate, regarding the evaluation of any Licensed Content and before taking, or refraining from, any action on the basis of Licensed Content. Licensed Content is subject to change at any time without notice.
3.2 You agree not to share access to Licensed Content by sharing links to Licensed Content, recording Licensed Content or other similar means, except as permitted by the relevant Distributor of the Licensed Content.
3.3 We disclaim all liability and responsibility arising from any reliance placed on any Licensed Content by you or any other User of the Platforms, or by anyone who may be informed of the content of any Licensed Content, except with regard to defects of such Licensed Content that were known by us and fraudulently not disclosed by us.
PART V – Miscellaneous
This part applies to all Users of the Platforms (unless as stated otherwise), as such, references to “you” in this part shall mean all Users. “Parties” shall mean Arifu and Users collectively.
Information and complaints
If you have a question or complaint regarding the Platforms, please send an e-mail to marketplace@arifu.com. You may also contact us by writing to the postal address that is found on our website. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
CONFIDENTIAL INFORMATION
2.1 “Confidential Information” means any information that is disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) (whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects, on office or site visits, or otherwise) that relates to the Disclosing Party’s business, finances, affiliates, products, services, pricing or Intellectual Property. Confidential Information does not include information that: (a) is generally known to the public when first disclosed by or on behalf of the Disclosing Party or thereafter becomes generally known to the public through no act or fault of the Receiving Party; (b) the Receiving Party already had obtained or obtains, without breaching any duty to the Disclosing Party, from a third party that was not under an obligation of nondisclosure; or (c) was or is independently developed by the Receiving Party without use or reference to any information obtained from the Disclosing or any Party acting on behalf of the Disclosing Party, as demonstrated by the Disclosing Party’s written records.
2.2 Obligations
The Receiving Party shall not:
reproduce or use the Disclosing Party’s Confidential Information for any purpose other than to perform its obligations in accordance with this Agreement; or
disclose the Disclosing Party’s Confidential Information to any Party other than an employee or independent contractor of the Receiving Party having a need to know such Confidential Information and who is under a binding obligation of confidentiality and limitation of use and disclosure consistent with the terms hereof. Neither Party, nor any Party affiliated with such Party, shall delete, alter or remove any copyright or proprietary marking from the other Party’s Confidential Information.
2.3 Required Disclosure
Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law or court or by a lawful subpoena issued by any state or federal court, arbitral or other governmental order or process; provided that, the Receiving Party:
gives the Disclosing Party immediate written notice as soon as it learns of such requirements in order to permit the Disclosing Party to seek a protective order or other appropriate relief;
assists the Disclosing Party in connection with such efforts; and
discloses only the Confidential Information required to be disclosed.
The Receiving Party shall continue to treat any Confidential Information disclosed pursuant to this section 2 as Confidential Information for all other purposes.
2.4 Right to Equitable Relief
Each Party acknowledges and agrees that:
it is impossible to measure in money the damage to the other Party that would be caused by any failure to comply with this section 2; and
in the event of any such failure, the Disclosing Party shall not have an adequate remedy at law or in damages.
Therefore, each Party consents to the issuance of an injunction or the enforcement of other equitable remedies against it, without bond or other security, to compel performance of all of the terms of this section 2 and waives the defense of the availability of relief in damages.
FORCE MAJEURE
3.1 Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party like failure of a utility service or transport or telecommunications network, malicious damage, accident, breakdown of plant or machinery, fire, flood, acts of God, server and communication breakdown, virus attack, hacking, strike, natural calamities, global pandemic, strikes, lockouts, war, riots, embargoes, civil commotion, any order rule, regulation or direction of governmental, quasi-governmental or local authorities, or any other similar cause beyond its control and which is anticipated or not anticipated in the usual course of business.
3.2 If a Party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:
as soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other Party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
if the Affected Party does not comply with the above, it forfeits its rights under this section 3;
the Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and
as soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall notify the other Party in writing that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.
3.3 If the Force Majeure Event continues for more than three (3) months from the day the Force Majeure Event starts, a Party may terminate this Agreement by giving not less than thirty (30) days’ written notice to the other Party.
NOTICES
4.1 All notices required or permitted under this Agreement will be in writing and will be deemed given:
when delivered personally;
when sent by electronic mail (followed by the actual document in air mail/air courier);
three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or
one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt.
All communications will be sent to the addresses set forth in this Agreement or such other address as may be designated by a Party by giving written notice to the other Party pursuant to this section 4.
GENERAL
5.1 Choice of Law
The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of England and Wales and without giving effect to the principles of conflict of law.
5.2 Dispute Resolution
The Parties acknowledge that disputes may arise from time to time. This being the case, the Parties agree to work together in a spirit of mutual co-operation to achieve an amicable resolution to any dispute. If a dispute has not been resolved amicably within thirty (30) days of a dispute being notified in writing to the other Party (or such further period as the Parties shall agree in writing):
the dispute shall be referred to, and finally resolved by, arbitration administered by International Court of Arbitration of the International Chamber of Commerce (ICC) (the Arbitration Body) according to the rules then currently in force of that Arbitration Body (the Arbitration Rules), which are deemed to be incorporated by reference into this section 5.2;
the seat of arbitration shall be London, England, although any hearings or procedural conferences may be convened in any other location (or virtually) as agreed between the arbitral tribunal and the Parties;
the arbitration proceedings shall be conducted in the English language;
one arbitrator will be appointed in accordance with the Arbitration Rules and may engage an expert to give such assistance as may be necessary;
for the avoidance of doubt, and notwithstanding any provision to the contrary in the Arbitration Rules, a Party shall be at liberty to seek interim or protective relief from any court of competent jurisdiction pending the appointment of an arbitral tribunal. Any emergency arbitrator provisions under the Arbitration Rules are expressly excluded;
the Parties irrevocably agree that the award of the arbitral tribunal shall be final and binding upon the Parties and any Party may apply to a court of competent jurisdiction for enforcement of such award; and
notwithstanding the above provisions of this section 5.2, 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. Either Party is also entitled to appeal to a court of competent jurisdiction within thirty (30) days on a question of law arising out of the award.
5.3 Copyright and Infringement Claims
We are committed to respecting the legal rights of copyright owners, including those who believe that material appearing on the Internet infringes their rights under either or both of English and U.S. copyright law (including the Digital Millennium Copyright Act of 1998). If you believe in good faith that materials available from the Platforms infringe your copyright, you may send to Arifu a written notice by post or e-mail, requesting that Arifu remove such material or disable access to it. If you believe in good faith that someone has wrongly submitted to us a notice of copyright infringement involving content that you made available through the Platforms, you may send to Arifu a counter-notice. Notices and counter-notices must be sent in writing to as follows:
by mail to P.O Box 16190-00100, Nairobi, Kenya; and
by e-mail to info@arifu.com.
We suggest that you consult your legal advisor before sending a notice or counter-notice. It is Arifu’s policy to terminate, in appropriate circumstances, a User’s right to use the Platform if they are deemed by Arifu to be repeat infringers.
5.4 Assignment and Subcontracting
Arifu may at any time transfer all or any part of its rights and obligations under this Agreement, to another company within the same group of companies as Arifu without requiring your prior consent. Arifu will provide to you notice of any such transfer within a reasonable time following such transfer. You may not transfer your rights or obligations under this Agreement to another person or legal entity without Arifu’s express prior written consent. Arifu may at any time subcontract or delegate any or all part of its obligations under these Terms to another company within the same group of companies as Arifu. You may not subcontract or deal in any other manner with any of your rights or obligations under this Agreement without Arifu’s express prior written consent.
5.5 No Waiver
No waiver of rights under this Agreement by either Party shall constitute a subsequent waiver of this or any other right under this Agreement.
5.6 Severability
In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for either Party, as determined by such Party in its sole discretion, then the affected Party may terminate this Agreement by written notice to the other.
5.7 Attorneys’ Fees
In any suit or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit of proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
5.8 No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither Party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever.
5.9 No Third Party Beneficiary
No person or entity other than the Parties is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the Parties, and the terms set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the Parties hereto.
5.10 Survival
The introductory paragraphs, Part V and rights under sections 5, 6, 8, 10 and 11 of Part I; sections 2, 4, 5 and 6 of Part II; 4, 5and 6 of Part III; 2 and 3 of Part IV shall survive the termination of this Agreement. Those sections listed in this section 5.11 relating to payment will survive termination to the extent that payment obligations have arisen prior to this Agreement’s termination.
5.11 Entire Agreement
This Agreement is the complete agreement between the Parties and replaces any prior oral or written communications between the parties. Each Party acknowledges and agrees that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in this Agreement.