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    GONG Policies

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GONG Mobile Payments (PennyWyze)

Terms And Conditions

Be sure to read carefully the following GONG Terms of Service (“Terms”) as they set out Your rights and obligations when You register for, or use of the GONG services.

By registering for, or using the GONG services (“GONG Service”) You agree that You have read the Terms and that You fully understand and are bound by these terms, regardless of how You registered for or use the services.

Without limiting the above, PROXIMIDIA may in its sole discretion ask You to accept any or all of the terms when You first register for, or start using the GONG service.

If You do not want to be bound by the terms, You must not register for, or use GONG service.

If You concluded a written contract with Us, You will also be bound by these Terms. However, to the extent that there is a conflict between the written contract and these Terms, the written contract will prevail.

1.Parties

1.1. This license agreement (“Agreement”) is between You (“You”) and Proximidia Technologies Limited, whose registered office is at 26 Tetlow Road, Owerri, Imo State, Nigeria (“PROXIMIDIA”).

2.Glossary

2.1. In this Agreement:

“Content” means music, games, graphics, video, text, images, information, text, data, graphics, software and audio and/ or visual or other similar material in whatever form which is offered by You to the End-User

“Content Revenue” means the revenue of the Parties as per agreed percentages which are defined in Your online profile at http://www.gongmsgn.com after You have registered and logged in at the mentioned website

“Data Protection Directive” means the applicable Directive of the Nigerian National Assembly on the protection of individuals with regard to the processing of personal data and on the free movement of such data, or any other relevant law and/or regulation applicable in the territory of the execution of this Agreement;

“End-User” means the Network Operator’s subscriber who purchases the Content from You by means of Transactions in accordance with these terms;

“Intellectual Property Rights” means all copyright (including but not limited to rights in computer software), patents, trademarks, trade names, trade secrets, registered and unregistered design rights, database rights and topography rights, all rights to bring an action for passing off, any other similar form of intellectual property or proprietary rights, statutory or otherwise, whether registrable or not and shall include applications for any of them, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;

“GONG data” means data, which is provided or generated in the course of PROXIMIDIA’s provision of GONG services.

“PROXIMIDIA Rights” means all Intellectual Property Rights owned by or licensed to PROXIMIDIA prior to or after the Commencement Date, including but not limited to those Intellectual Property Rights involved in any aspect of GONG services, the GONG Platform or any device, software or data used in connection therewith, including without limitation the GONG Data;

“GONG service” means the service rendered by PROXIMIDIA to You through the use of its proprietary GONG Platform for the processing of the Transactions and the collection of monies due to You;

“GONG Platform” shall mean PROXIMIDIA’s proprietary platform used for processing Transactions and for the collection of monies due to You from the End-Users in respect of the Transaction in accordance of these terms, comprised of the connection and interfacing capabilities;

“Network Operator” shall mean any firm operating a GSM-based or CDMA-based mobile telephony network, offering mobile telephony services to its subscriber base.

“Network Operator Change” means any change in the services, prices, conditions or terms for services provided to PROXIMIDIA by a Network Operator;

“Protocol Specification” means the protocols to be used by You in order to access GONG services, as You shall be notified by PROXIMIDIA from time to time;

“Service Interface” means the method to be used by You to connect to the GONG Platform;

“Service Schedule” shall mean the schedule(s) attached to these terms from time to time by mutual agreement of the Parties that (i) describes the Services; (ii) details fees and charges for the Services and administration costs related thereto, and (iii) any other terms and conditions or Addendum relevant to matters contemplated by this Agreement

“Service Specifications” means PROXIMIDIA documentation detailing the features of GONG services;

“Taxes” means any federal, state, local or foreign government tax, fee, duty, surcharge, or other tax-like charge that is required or permitted by applicable law to be collected from You by PROXIMIDIA;

“Third Party” means any and all persons or entities not a Party to these terms;

“Third Party Provider” means any Third Party that has entered into an agreement with You to provide any or all of the Your Services.

“Trading Limits” means the maximum amount per Transaction which may be billed by means of the GONG service, which is based on the Network Operator’s policy or statutory or technical requirements as notified by the relevant Network Operators;

“Transaction” means each individual purchase of the Contents by the End-Users;

“Your Services” means the service(s) operated by You for distributing or sending the Content to End-users;

“Service Website” means the website at http://www.gongmsgn.com.

3.Binding Agreement

3.1. You understand and agree that by using the GONG services, You are bound by these Terms. PROXIMIDIA is permitted to make changes to these Terms by notifying You in advance via the contact details You have provided on the Website. Continuing to use the GONG Service indicates that you fully accept the changes to the Terms.

4.Grant Of License

4.1. Subject to the provisions of these Terms, PROXIMIDIA grants You a limited, non-exclusive and non-transferable licence to use the Service and the Service Website.

4.2. PROXIMIDIA may at any time and at its sole discretion limit, deny, create different priorities for different users, update or cancel some or all of the functionality of the Service without prior notice.

4.3. You may provide Your Service using the GONG service. You are solely responsible for the contents of Your Services, and adherence to the provisions of these terms and other terms and conditions provided on the Service Website.

4.4. PROXIMIDIA reserves the right to investigate, at its own discretion, any activity that may violate these terms.

4.5. You shall ensure that no false or misleading information, viruses or any other harmful, damaging or destructive programs, or any content which infringes or may infringe any third party intellectual rights are distributed with Your Service using the GONG service, related websites or other promotional materials.

5.Content Revenue And Financial Provisions

5.1. The Charges due to PROXIMIDIA in respect of the GONG services are the PROXIMIDIA portion of the Content Revenue which is defined in Your online profile at www.gongmsgn.com after You have registered and logged in at the mentioned website. The Charges are exclusive of any applicable VAT or equivalent charges.

5.2. The invoice and/or statement, set forth in Section 5.1 of these terms, which will be paid by You shall include the following amounts:

5.2.1. The transaction costs related to any payout of Your portion of the Content shall be borne by You. This includes, without limitation, the fees and charges levied by the banks or any other financial institutions, including any correspondent banks. You acknowledge that amount of ₦3,000 (three thousand) Naira levied on payout is therefore borne by You for each payout for transactions outside West Africa and ₦1,000 (one thousand) Naira for each transaction within West Africa;

5.2.2. Any applicable Taxes, which shall be paid in addition at the rate and in the manner required by law.

5.3. In the event that Due Charges have not been paid by You, then PROXIMIDIA shall be entitled to suspend (i.e. stop) the provision of GONG services until further full due payment has been made by You.

5.4. In the event that any payment due under this Agreement is not paid on the due date for payment then PROXIMIDIA shall be entitled to charge a late payment charge of 1% monthly or 12% annually from the date due until such amount is paid. The Parties agree to the dispute resolution procedures as set forth below:

5.4.1. Small Dispute. If the dispute is within seven per cent (7%) of the total underpayment, the Parties agree to forgive the difference in dispute and You shall pay the amount as invoiced.

5.4.2. Payment and Resolution upon Dispute Notification. In the event that a dispute notification is given in compliance with these terms, You shall pay the non-disputed portion of the invoice on due date. The Parties will exercise reasonable efforts to resolve the dispute within thirty (30) days from date of the dispute notification (“Disputed Amounts”).

5.5. All financial reports, statements, invoices, charges and payments made under this Agreement shall be in Naira.

5.6. PROXIMIDIA shall be entitled to make any deduction or withholding required by law from any payment payable under these terms and in the event that a withholding tax or deduction is payable by PROXIMIDIA, PROXIMIDIA shall pay any revenue payable net of the applicable withholding and deductions required by law to You.

5.7. In respect of Clause 5.6, PROXIMIDIA shall supply evidence to Your reasonable satisfaction that PROXIMIDIA has accounted to the relevant authority for the sum withheld or deducted and shall provide all such assistance as may be reasonably requested by You in recovering the amount of the withholding.

5.8. In the event that a double taxation treaty applies which provides for a reduced withholding tax rate, PROXIMIDIA shall only withhold and pay the reduced tax on Your behalf and for Your account if an appropriate exemption certificate is issued by the competent tax authority and provided by You to PROXIMIDIA.

5.9. If PROXIMIDIA, in good faith, makes a payment as applicable without set-off, counterclaim, or required withholding or deduction and a subsequent audit identifies that a withholding or deduction should have been made from such payment, You shall be liable to pay this withholding or deduction to the relevant authority or (if PROXIMIDIA makes the payment to the relevant authority) to PROXIMIDIA. In addition, in the event that an audit identifies that the withholding or deduction has not been made due to Your fault as applicable, the You shall also pay any interest and penalties due thereon and shall indemnify PROXIMIDIA in respect of any such residual liability. Either party shall take reasonable actions in order to mitigate penalties, where possible according to the local legislation.

5.10. You warrant and undertake to inform PROXIMIDIA about its tax residency and shall be deemed to remain tax resident in the same territory unless it notifies PROXIMIDIA of a change of tax residency on thirty (30) days prior written notice. You shall on demand provide any documentation required by PROXIMIDIA evidencing its tax residency in such territory.

5.11. In the event that PROXIMIDIA is not reasonably informed of a change in Your tax residence, You shall indemnify PROXIMIDIA against any costs (including but not limited to withholding tax and any accrued interest and penalties) incurred by PROXIMIDIA due to such failure to inform.

5.12. If VAT is chargeable by the PROXIMIDIA in respect of any amount payable hereunder, PROXIMIDIA shall provide to You with an invoice that specifically states such VAT and (if a relief procedure is available) meets all further conditions required by applicable law which are necessary to allow You to obtain relief from such VAT. You shall, upon receipt of such invoice, pay to PROXIMIDIA such VAT at the rate then properly chargeable in respect of the relevant payment.

5.13. You agree to provide its VAT registration number and such other further information as PROXIMIDIA may reasonably request in relation to any supply hereunder.

5.14. Subject to the clauses of these terms, PROXIMIDIA agrees to transfer Your portion of the Content Revenue of each completed Transaction to You.

5.15. PROXIMIDIA reserves the right to unilaterally change any Content Revenue at any time. PROXIMIDIA will inform You about such change by notifying You in advance via the contact details You have provided on the Service Website. If You do not agree with the change, You may terminate the GONG services. Continuing to use the GONG service after the changes have become effective indicates that You fully accept the changes to the Content Revenue.

5.16. PROXIMIDIA will not be obliged to make any payments to You before PROXIMIDIA has received the corresponding invoicing data and payment from the relevant Network Operator(s).

5.17. In the event that PROXIMIDIA does not receive a payment in respect of any Transaction or only receives a partial payment in respect of any Transaction, whether due to (i) an error or fault in the GONG service (whether or not caused by PROXIMIDIA); (ii) any act or omission by a Network Operator; (iii) any act or omission by an End user; or (iv) any other cause, PROXIMIDIA shall not be liable to pay Your portion of the Content Revenue of that Transaction to You.

5.18. You are aware that Network Operators disclaim their payment liability for Transactions where the Network Operator has failed to collect payment from the End users. In such event PROXIMIDIA has no payment obligation towards You.

5.19. In the event that any Network Operator makes any set-off or retains any payment payable to PROXIMIDIA as the result of any Transaction which is challenged by an End user after the date of payment, whether due to fraud or otherwise (a “Challenged Transaction”), PROXIMIDIA shall in turn be entitled to set-off or retain Your portion of the Content Revenue of any such Challenged Transaction from any subsequent payment to You.

6.Payment Terms

6.1. PROXIMIDIA shall transfer Your portion of the Content Revenue pursuant to clause 5. as soon as practicable following receipt of Your portion of the Content Revenue by PROXIMIDIA from the relevant Network Operator. It is hereby agreed that PROXIMIDIA shall execute the payment of Your portion of the Content Revenue, when Your portion of the Content Revenue is equivalent to, or higher than the amount of ₦150,000 (one hundred and fifty thousand) Naira (the “Minimum Payout“).

7.Payment Details

7.1. Should Your portion of the Content Revenue, for the particular settlement period, be lower than the Minimum Payout, PROXIMIDIA shall accumulate this amount until it reaches the Minimum Payout. Once reached the Minimum Payout it will trigger the obligation on PROXIMIDIA to pay Your portion of the Content Revenue. The CLIENT hereby acknowledges that constraints of this Clause are imposed on PROXIMIDIA by Network operators on which PROXIMIDIA is dependent for the collection of the monies from the End Users.

7.1.1. PROXIMIDIA will use commercially reasonable efforts to enforce the payment obligations of each Network Operator that is party to any Transaction. You acknowledge that the standard payment terms by the Network Operators to PROXIMIDIA is between 30 to 60 days, but may be longer. PROXIMIDIA makes no warranty or representation regarding the timing of any payment by a Network Operator.

7.1.2. PROXIMIDIA reserves the right to withhold payment or charge back Your account due to any breach of these terms by You, pending PROXIMIDIA’s reasonable investigation of the breach. In the event that in PROXIMIDIA’s opinion the clauses of these terms are breached, and as a consequence PROXIMIDIA has been charged by mobile operators or refunded payments to end users, PROXIMIDIA is entitled to invoice You for such refunds, charges and all costs incurred by PROXIMIDIA.

7.1.3. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account with PROXIMIDIA.

7.1.4. If You wish to dispute any payment, You should do so within 30 days of the date of receipt of such payment. Failure to do so in this period shall be deemed as You have accepted the correctness of the payment.

7.1.5. Payments shall be calculated solely based on the GONG Platform data and records maintained by PROXIMIDIA (including without limitation confirmation of payment by Network Operators to PROXIMIDIA in respect of any Transaction). No other measurements or statistics of any kind shall be accepted by PROXIMIDIA or have any effect under these terms.

8.Warranties

8.1. PROXIMIDIA provides the GONG service to You on an “AS IS” basis, subject to the clauses and conditions of these terms. PROXIMIDIA makes no guarantee regarding the performance of PROXIMIDIA’s systems, Network Operators’ billing systems, or the amount of any payment to be made to You under these terms.

8.2. You represent, warrant and undertake that:

8.2.1. You have the adequate legal capacity to enter into this Agreement;

8.2.2. If You are acting on behalf of a corporate body, that You are duly authorised to enter these terms on behalf of that corporate body;

8.2.3. If You are an individual, You are at least 18 years old;

8.2.4. You will use the GONG service only for lawful purposes and in accordance to these terms and the instructions provided on the Service Website;

8.2.5. You will ensure that all aspects of Your Service and each Transaction shall comply with all laws, regulations and guidelines applicable in any territory in which any End user initiates such Transactions; and

8.2.6. You are solely responsible for the stipulation, the Content and all other required aspects of Your agreements with the End – Users related to the Content and the Transactions. You hereby warrant PROXIMIDIA that all such agreements with the End – Users, in all their aspect, fully comply with all laws, regulations and other requirements of all the jurisdiction of the End – User’s residence and/or domicile. You also warrant PROXIMIDIA that all Trading Limits shall be respected.

9.Limitation Of Use Of GONG services

9.1. Unless otherwise expressly consented to in writing by PROXIMIDIA (which consent may be withheld or withdrawn by PROXIMIDIA at its sole discretion), You agree that you shall not use the GONG service to procure payment for any content or services related in any way to:

9.1.1. Gambling or similar services; or

9.1.2. Adult content (including without limitation explicit language, nudity, or other content as deemed inappropriate for under 18’s by the laws of the Federal Republic of Nigeria).

9.2. Unless otherwise expressly consented to in writing by PROXIMIDIA (which consent may be withheld or withdrawn by PROXIMIDIA at its sole discretion), You warrant, represent and undertake that your website does not:

9.2.1. Provide services relating to gambling or similar services; or

9.2.2. Contain or provide any adult content or services (including without limitation explicit language, nudity, or other content as deemed inappropriate for under 18’s by the laws of the Federal Republic of Nigeria).

9.3. You shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:

9.3.1. Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

9.3.2. Facilitates illegal activity;

9.3.3. Promotes unlawful violence;

9.3.4. Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

9.3.5. Causes damage or injury to any person or property;

9.3.6. and GONG reserves the right, without liability to You, to disable Your access to any material that breaches the provisions of this clause.

9.4. You shall not:

9.4.1. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: and except to the extent expressly permitted under these terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the PROXIMIDIA software related to the GONG service in any form or media or by any means; or

9.4.2. Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the PROXIMIDIA software related to the GONG service; or

9.4.3. Access all or any part of the GONG service in order to build a product or service which competes with the GONG service.

10.End User Data And Data Protection

10.1. You shall comply with all applicable data protection laws in respect of any Processing of Personal Data conducted by them pursuant to these Terms.

10.2. You agree that where PROXIMIDIA provides to You any Personal Data of the End – Users, that You shall:

10.2.1. Use such data solely as necessary for the purposes of supplying Your Service, provided that such Content have been requested and/or resolving Customer support queries related to Your Services, and for no other purpose. Any use of GONG Service to obtain the Personal Data of an End-User without that End-User’s consent will be considered a material breach of these terms;

10.2.2. Retain such data for only so long as is strictly necessary for such purposes and, in any event, in compliance with applicable data protection and telecommunications laws;

10.2.3. Without limiting the foregoing, not use such data for the purposes of You profiling and/or marketing whether from that information itself or by associating such data with any subsequent data provided by PROXIMIDIA;

10.2.4. Comply with PROXIMIDIA reasonable data protection and security requirements and policies (PROXIMIDIA may, upon reasonable notice to You, audit the Your compliance with such requirements and policies), including the manner in which the End-User’s approval is obtained for Your use or other related End–User’s Personal Data.

11.PROXIMIDIA Rights

11.1. Ownership of all PROXIMIDIA Rights shall vest in and remain with PROXIMIDIA. Subject to clause 10.2, PROXIMIDIA does not by these terms grant You any right, title, license or interest in or to any PROXIMIDIA Rights, including any software or documentation, or in any related patents, copyrights, trade secrets or other proprietary intellectual property. You shall acquire no rights of any kind in or to any PROXIMIDIA trademark, service mark, trade name, logo or product or service designation under which GONG products or services were or are marketed (whether or not registered) and shall not use same for any reason except as expressly authorized in writing by GONG prior to such use, but in no event for a period longer than the Term.

11.2. Notwithstanding the foregoing, PROXIMIDIA shall license to You for the Term only such use of PROXIMIDIA Rights as is directly and unavoidably required by You to use the GONG services (including any documentation or software which PROXIMIDIA makes available to You for the use pursuant to these terms) for the Term.

11.3. Any license granted under this clause 11 shall be non-transferable, non-sub licensable, non-exclusive and royalty free and shall be limited to the Term in respect of the GONG services and shall be granted only for the purpose of fulfilling the respective Party’s rights and obligations under these terms.

11.4. Neither Party shall reverse engineer, decompile or disassemble any software comprised in the other Party’s Intellectual Property Rights.

12.Compliance With Laws

12.1. You are solely responsible for any legal liability arising out of or relating to the Content and Your Services (whether transmitted on its own or on any Third Party’s behalf). If PROXIMIDIA is notified or otherwise becomes aware of Content which violates the requirements of these terms, PROXIMIDIA may (but shall not be required to), in its sole discretion immediately suspend the GONG services, and/or terminate these terms. PROXIMIDIA shall not be liable for any damages incurred by You because of any such action.

12.2. You shall be responsible for ensuring that all licences, permits, and approvals which are necessary or advisable for the provision of Your Services and each Transaction and that in compliance with the Applicable Law are obtained and maintained during the term of this Agreement.

12.3. In any marketing of Your Service, You are responsible for giving all the information specified and/or required by any Applicable Law, including price references with the retail price that the End users will have to pay for using Your Service.

12.4. PROXIMIDIA is not responsible for any matter or thing related to Your Services.

13.Termination

13.1. Either Party may terminate these terms with or without cause at any time by sending written notice to the other party. PROXIMIDIA may investigate any activity that may violate this Agreement. PROXIMIDIA may at any time, in its sole discretion, terminate the GONG service or terminate these terms for any reason.

13.2. GONG reserves the right to terminate Your account, at any time, in case of termination of the GONG service or of termination of these terms.

13.3. These terms shall not be considered breached if PROXIMIDIA temporarily restricts or suspends some of its activities or fails to fulfil some of its obligations owing to an event of force majeure such as emergency, natural disaster, military conflict, epidemic, etc. for the duration of the effects of such force majeure. PROXIMIDIA shall take steps that might be rightfully requested from it in order to minimize the consequences of the force majeure.

14.Limitation On Liability

14.1. You, at Your own expense, will indemnify, defend, and hold harmless PROXIMIDIA, its Affiliates, and their respective employees, officers, directors, representatives and agents from and against all losses, damages, liabilities, settlements, costs and expenses (including attorneys’ and professionals’ fees and other legal expenses) arising out of or related to any claim, demand, suit, action, or proceeding initiated by a Third Party arising out of or relating to: (a) any breach by You of these terms, (b) any of Your Services, Content or other materials or services provided by You or Your Third Party Providers under these terms, or (c) an allegation that the services or Content provided by You to Your customers violates any local, state, federal or foreign law, rule or regulation PROXIMIDIA will provide to You with a written notice of Your Covered Claim and permit CLIENT to control the defence, settlement, adjustment or compromise of Your Covered Claim.

14.2. Notwithstanding the foregoing, PROXIMIDIA will have the right – in its sole discretion – to employ separate counsel and participate in the defence of any Your Covered Claim, and You shall indemnify all reasonable costs incurred to PROXIMIDIA in such defence (such as reasonable attorney and third party fees and, to the extent permitted by law, fines and penalties, etc.).

14.3. In no event shall PROXIMIDIA be liable to You under these terms for any consequential, special, indirect, exemplary, or punitive damages, including indirect losses such as loss of earnings, financial or commercial loss, or loss of brand image whether arising in an action of contract, tort or other legal theory even if PROXIMIDIA have been advised of the possibility of such damages, PROXIMIDIA’s total liability, in aggregate, under this Agreement for any claim is limited to the net amount paid by PROXIMIDIA to You during the 6 (six) month period immediately preceding the date of the claim.

15.Trademarks

15.1. You agree that PROXIMIDIA may use Your name and logo in presentations, marketing materials and customer lists.

15.2. Subject to the terms of these terms, PROXIMIDIA grants You a non-exclusive, royalty-free license to use the GONG Trademark for the limited purposes of marketing, promoting and making available the Payment Services in accordance with the terms of this Agreement.

15.3. The Parties agree and acknowledge that, all rights in, title to and ownership of the GONG Trademarks shall remain with PROXIMIDIA and any and all goodwill shall vest in PROXIMIDIA.

15.4. Except as expressly provided by this clause 15 or permitted by Applicable Law: –

15.4.1. Neither Party shall use the names, trademarks, service marks, designs or logos, nor any adaptation, translation or variation thereof, of the other Party in any manner whatsoever without the prior written consent of the other Party in each instance; and

15.4.2. No right, title or interest in and to any copyright, names, trademarks, service marks, designs or logos of either Party is conveyed or intended to be conveyed by these terms.

16.Retention Of Information

16.1. PROXIMIDIA may retain and use all information You provide, including but not limited to service usage details, contact and billing information. You agree that PROXIMIDIA may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your usage of the Service. PROXIMIDIA may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. PROXIMIDIA disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. PROXIMIDIA may share non-personally-identifiable information about You, including service details, usage statistics and similar information collected by PROXIMIDIA, with advertisers, business partners, sponsors, and other third parties.

16.2. Any End user information is owned by respective Network Operator, and You can only use this information for providing Your Services. In case You abuse this rule and Network Operator judges so, the penalties in force at the time will be charged to You and You undertake to pay any such penalties. This clause will remain in force after the termination of these terms.

17.Force Majeure

17.1. Either Party’s performance of any part of these terms shall be excused to the extent that it is hindered, delayed or otherwise made impractical by the acts or omissions of the other Party or any Network Operator, flood, fire, earthquake, strike, stoppage of work, or riot, failure or diminishment of power or of telecommunications or data networks or services not under the control of a Party, governmental or military acts or orders or restrictions, terrorist attack; or any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that Party and not caused by the negligence of the non-performing Party (collectively referred to as “Force Majeure” below).

17.2. If any Force Majeure condition(s) occur(s), the non-performing Party shall make reasonable efforts to notify the other Party of the nature of any such condition and the extent of the delay, and shall make reasonable, good faith efforts to resume performance as soon as possible.

18.Entire Agreement

18.1. These terms constitutes the entire understanding and agreement of the Parties hereto with respect to the subject matter hereof. These terms supersede all prior and contemporaneous agreements, representations and understandings between the Parties regarding the subject matter hereof.

19.Waivers

19.1. No waiver of any provision of this Agreement by either Party shall be effective unless made in writing. The waiver of either Party of any default or breach of this Agreement shall not constitute a waiver or any other or subsequent default or breach.

20.Invalidity

20.1. In the event any provision of these terms is held to be invalid or unenforceable, the remaining provisions of these terms will remain in full force. Further, if any provision of these terms, for any reason, is determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision shall be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the Parties as expressed in these terms.

21.Relationship Of The Parties

21.1. The relationship of the Parties established by these terms is that of independent contractors, and these terms does not create an agency, employment, partnership or joint venture relationship between the Parties. Each Party acknowledges and agrees that the business relationship and activities contemplated by these terms are nonexclusive and that nothing in this Agreement prohibits either Party from participating with Third Parties in similar business arrangements as those described herein.

22.Confidentiality

22.1. Each Party may make available or otherwise disclose to the other Party during the negotiation or performance of these terms certain business information, including information that is proprietary to a Third Party. Except as otherwise stated herein, all such information shall be considered the confidential and proprietary information of the Party disclosing such information (“Disclosing Party”) if, when disclosed in writing or orally, it is clearly identified as confidential or proprietary (“Proprietary Information”). For the purposes of this Agreement, “Receiving Party” shall mean the Party and its employees, advisors and Affiliates to whom Proprietary Information is disclosed.

22.2. Proprietary Information shall not include:

22.2.1. Information that was independently developed by the Receiving Party without reference to or knowledge of the Disclosing Party’s Proprietary Information;

22.2.2. Information that was known to the Receiving Party prior to disclosure by the Disclosing Party and that is free from any obligation to keep it confidential;

22.2.3. Information that is within the public domain through no action on the part of the Receiving Party;

22.2.4. Information that was received from a Third Party who was under no obligation to keep such information confidential.

22.3. Neither Party shall disclose the Proprietary Information of the other Party, except to its directors, officers, employees, consultants and attorneys, or except to those employees of its Affiliates who have a need to know such Proprietary Information for negotiation or performance of this Agreement and who have agreed to maintain the confidentiality of such Proprietary Information as provided herein.

22.4. If a demand under legal or regulatory authority of competent jurisdiction or a requirement of law for the discovery or disclosure of Proprietary Information is made known to the Receiving Party, the Receiving Party shall give the Disclosing Party notice of the demand or requirement prior to disclosing the Proprietary Information and shall, upon the request and at the expense of the Disclosing Party, obtain or cooperate in any efforts by the Disclosing Party to seek reasonable arrangements to protect the confidential and proprietary nature of such Proprietary Information.

22.5. The obligations described in this clause shall survive the termination of these terms for a period of 5 (five) years.

22.6. Both Parties agree that a breach of any of the obligations set forth in this clause 23. would irreparably damage and create undue hardships for the other Party. Therefore, the non-breaching Party shall be entitled to immediate court ordered injunctive relief to stop any apparent breach of this clause 23., such remedy being in addition to any other remedies available to such non-breaching Party.

23.Governing Law

23.1. These terms shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria and the parties hereto submit to the exclusive jurisdiction of the courts of the Federal Republic of Nigeria for the purpose of enforcing any claim arising hereunder.