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THIS ADVERTISING agreement is entered between:

  1. YULULU KENYA LIMITED, a limited liability company incorporated in Kenya under the Companies Act, (Cap 486, Laws of Kenya) and of Post Office Box Number 64863-00620 Nairobi (hereinafter called “The Agency” which expression shall where the context so admit include its successors and assigns) of the first part AND
  1. YOU hereinafter called “The Client” which expression shall where the context so admit include its successors and assigns of the second part.

WHEREAS

  1. The Agency operates, maintains, and administers an Internet advertising platform (hereinafter the "Platform" or “Advertising Platform”) under the brand name “Yululate”, through which advertising and promotional material may be displayed.
  1. The client wishes to utilize the Platform for purposes of advertising its goods and/or services and the Agency has agreed to provide to the Client the Platform for such advertisements, subject to the terms of this Agreement.
  1. The Parties have entered into this Agreement in order to set out the terms governing their relationship.

IT IS AGREED AS FOLLOWS:

1.      DEFINITIONS AND INTERPRETATION.

1.1.      In this Agreement (including its recitals and the Schedule) unless the context otherwise requires the following terms shall have the following meanings:

(a)         “Agency”                               means the Yululu Kenya Limited;

(b)         “Client"                                   means {insert name of Client};

(c)          “Working Day”                      means a day other than a Saturday or Sunday or a public or bank holiday in Kenya;

(d)         “The Parties”                          mean the parties to this agreement, the Client and the Agency

1.2.      In this Agreement (including its recitals and the Schedules) unless the context otherwise requires:

1.2.1.   references to this Agreement shall include the Schedules which shall form part of this Agreement and such Schedules shall have the same force and effect as if expressly set out in the body of this Agreement and, in addition, shall include any amendments made by the Parties to this Agreement and any agreement supplemental to this Agreement;

1.2.2.   words denoting the singular number shall include the plural and vice versa and references to the masculine gender includes a reference to the feminine gender and neuter and vice versa;

1.2.3.   the expression person includes any legal or natural person, partnership, trust, company, joint venture, agency, governmental authority or other body (whether corporate or unincorporate);

1.2.4.   headings to Sections are for convenience only and shall not affect the interpretation or construction of this Agreement;

1.2.5.   references to Sections, clauses, sub-clauses and the Schedule are to be construed as references to the Sections, clauses and sub-clauses of and the Schedule to this Agreement; and

1.3.      In this Agreement any reference to any document means that document as is supplemented, amended or varied from time to time between the parties thereto in accordance with the terms (if applicable) hereof and thereof.

2.      APPOINTMENT AND TERM.

2.1.      The Client appoints the Agency to provide the Platform in respect of the Client’s advert(s) during the Term in accordance with this Agreement.

2.2.      This Agreement shall commence on the date selected by the Client provided the Agent has received payment at least 5 business days before the start date chosen by the Client or the first available date as provided by the Agent (the 'Commencement Date') and continue for a period selected by the Client upon the Agency’s discretion subject to the provisions on termination.

3.      WARRANTIES AND INDEMNITIES.

3.1.   Each Party represents and warrants as of the date hereof to the other Parties as follows:

3.1.1.   (where applicable) it is duly organized and validly existing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to enter into this Agreement and to performs its obligations hereunder;

3.1.2.   that this Agreement has been duly authorised and executed by it and constitutes its valid and legally binding obligations, enforceable in accordance with its terms; and

3.1.3.   that the making of this Agreement and the compliance with its terms will not violate or conflict with any law applicable to such Party, any provisions of any its constitutional documents or any order or judgment of any court or other agency of government applicable to such Party or any provision contained in any agreement or instrument to which such Party is bound.

3.2.   The Client warrants and represents to the Agency that:

3.2.1.   The goods and/or services that it offers are legal in the countries they are offered;

3.2.2.   It is offering its goods and/or rendering its services in full compliance with all applicable laws, including any laws regarding the transmission of technical data and personal data, consumer protection, advertising, trademark and unfair competition.

3.2.3.   The Client shall not interfere or attempt to interfere with the proper working of the Advertising Platform or prevent others from using the Advertising Platform

3.3.   The Client undertakes that it will indemnify the Agency and keep the Agency fully indemnified against all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Agency on the advice of its legal advisers to compromise or settle any claim) and all legal costs or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach

4.      PROVISIONS WITH RESPECT TO THE ADVERTISING PLATFORM.

4.1.      The Client will give the Agency clear briefings and ensure that all the facts given about advert, the goods and/or services are accurate.

4.2.      The Agency will co-operate fully with the Client and use reasonable care and skill to make the Advertising as successful as is to be expected from a competent advertising agency. The Client will help the Agency do this by making available to the Agency all relevant information and co-operating with the Agency.

4.3.      The Agency reserves the right, but shall have no obligation, to review the Advertisements displayed through the Advertising Platform, as well as the goods and services promoted by the Advertisements, in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, administrative or governmental request.

4.4.      For the avoidance of doubt, publishing of the adverts shall be at the sole discretion of the Agency

5.      AGENCY FEES.

5.1.      The Client shall pay the Agency a fee of Kenya Shillings {please insert} per {month}{year} in respect of the Services.calculated and agreed by the Client.  For the avoidance of doubt, this fee shall be exclusive of any disbursements and taxes.

5.2.      In this clause, payment of an invoice within a specified number of days means payment within that number of days after the receipt date of the invoice in question.

5.3.      The Agency will invoice the Client in respect of Agency fees upon selection of the advertisement options and acceptance of this agreement.

5.4.      The Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 24%. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Agency receives the full outstanding amount together with all accrued interest.

6.      TECHNICAL MATTERS – CHANGES, AVAILABILITY.

6.1.      The Client hereby acknowledges that the Agency provides the Advertising Platform through which it renders its services on an ‘As Is’ and ‘As Available’ basis, and subject to the following technical and commercial limitations:

6.1.1.   The Agency may modify the Advertising Platform without prior notice. Accordingly, the Client is granted a right of use only for the then current version of the Platform. The Agency will however undertake all reasonable measures to ensure that the modification does not prejudice the Client’s interests.

6.1.2.   In the event, that the modification severely affects the Client’s interests, the Client shall inform the Agency in writing that it objects to the modification. In case the Agency does not comply with the Client’s request to restore the functionality of the Advertising Platform in a way that is materially equivalent to the former functionality within twenty one (21) days of receipt of the request, the Client shall have the right to terminate the Agreement. In respect of this matter, the Client acknowledges that this shall be the sole remedy of the Client.

For the purposes of this clause, only the suppression of materially important features without the introduction of materially equivalent features, not the introduction of new features or functionalities shall be considered to materially affect the interests of the Client.

The Agency reserves its right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice.

6.1.3.   The Agency undertakes to assure an availability of the Advertising Platform of 90% (ninety percent) as a yearly average. Periods during which the Advertising Platform is not available because of technical or other problems outside the Agency’s control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this.

6.2.      The Agency may restrict access to the Advertising Platform if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data.

6.3.      The Agency grants the Client access to the Advertising Platform in the then current version only. The Client hereby acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time.

6.4.      The Client shall document any faults in the Advertising Platform, and report them in writing (along with a log of the error messages displayed, if applicable). Before reporting a potential bug, the Client will consult the instruction and other troubleshooting tools provided by the Agency (especially frequently asked question lists, forums and boards for troubleshooting). The Client will use its best efforts to support the Agency in any attempts to debug.

6.5.      The Client will notify the Agency of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail).

6.6.      The Agency is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by the Agency.

6.7.      The Client is liable for any costs incurred by the Agency based on incorrect reports by the Client, especially in the event that there is no defect, or the defect has been caused by the Client itself.

7.      INTELLECTUAL PROPERTY RIGHTS.

7.1.      The Client warrants, represents and undertakes the Agency as follows:

7.1.1.   The Client is the exclusive legal and beneficial owner of all intellectual rights, title and interest in the goods and/or services being advertised and there are no liens, encumbrances or other charges over any of them, save as those that may be disclosed by the Client.

7.1.2.   The Client is entitled to use the Intellectual Property and has not entered into any agreement relating to the Intellectual Property, which might affect its ability to agreement or enter into this agreement or which would be inconsistent with the warranties and obligations under this agreement.

7.1.3.   The Client is not aware of any allegation or claim that it is not entitled to the Intellectual Property or to be registered as the exclusive owner of them, and on being aware, the Client shall promptly notify the Agency.

7.1.4.   There are no allegations or proceedings, pending or threatened, which assert that development, manufacture, use or sale of the goods and/or services being advertised by the Client infringes or will infringe third party rights.

7.1.5.   That having taken such legal or other advice in respect of the Advertising as the parties consider necessary and having undertaken such trade mark searches and other enquiries as the parties may agree should be undertaken, the publication of the Advertising shall, to the best of the Client’s knowledge and belief, not infringe any third party rights or be in any other way contrary to law other than as contained in any legal or other advice provided to the Agency and communicated to the Client.

7.1.6.   The Client has made a full and complete disclosure to the Agency of all third party relationships which may affect the Client’s full and complete exercise of rights under this agreement.

7.1.7.   In the event of the Client becoming aware of any information which might affect its ability to give the warranties and representations set out above it shall promptly notify the Agency.

7.1.8.   The Client undertakes that it will indemnify the Agency and keep the Agency fully indemnified against all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Agency on the advice of its legal advisers to compromise or settle any claim) and all legal costs or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach

7.2.      The Agency shall retain all rights, title, and interests in and to the Advertising Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto.

7.3.      The Client acknowledges that the software, information, content and data relating to the Advertising Platform (such as any usage data or compilations thereof) are the property of the Agency.

7.4.      The Agency does not grant to the Client any license, express or implied, to the intellectual or industrial property of the Agency or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement.

7.5.      The Client acknowledges that by entering into this Agreement, it grants the Agency the right to name the Client as a reference for the Agency’s services. This includes the right to use the Clients logo on the Agency’s websites.

8.      UNDESIRED ADVERTISEMENTS.

8.1.      The Client hereby undertakes not to submit any advertisement on the Advertising Platform that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or contains links to content of such nature (“Advertisement of an Illegal Nature”). For the purpose of this clause, advertisements which are unlawful include, without limitation, those which breach any laws regarding the transmission of technical data and personal data, consumer protection, advertising, trademark and unfair competition.

8.2.      The Client shall not submit any advertisements which contain or link to spam, bulk mail or offers with hidden costs.

8.3.      The Agency has the right, but is under no obligation to manually verify advertisements submitted by the Client before they are activated (i.e. made available through the Advertising Platform).

8.4.      The Agency may, at its sole discretion, deactivate or remove any advertisement which, in the Agency’s reasonable opinion, is an Undesired Advertisement.  The Agency shall inform the Advertiser without undue delay in case an advertisement has been removed.

9.      ADVERTISER'S SITE.

9.1.      In the event that the Client’s advert on the Platform contains a link to the Clients website/s (the “Client’s Site”)

9.1.1.   The Client shall inform the Agency, giving reasonable notice, in the event it intends to materially alter the content or appearance of the Client’s Site;

9.1.2.   The Client shall procure that the Client’s Site complies with the provisions of this Agreement including but not limited to clause 7 above on undesired advertisements.

9.1.3.   The Client warrants and represents that it does not include any illegal or offending content on the Client’s Site.

9.1.4.   The Client shall take all reasonable measures to remove or suppress illegal or offending content (including actions) on the Client’s Site provided by third parties (including users) without undue delay. The Client shall take all reasonable measures to prevent the reoccurrence of such infringements.

9.1.5.   The Client shall indemnify and shall hold the Agency harmless of any third party claims alleging the Client’s Site contains undesired advertisements.

9.2.      The Client hereby acknowledges that the Agency neither endorses nor approves of any actions or content made available by the Client on the Client’s Site.

10.  ADVERTSING REGULATIONS.

10.1.  Both parties shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator.

10.2.  The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable law or Advertising Regulation.

10.3.  The Client shall inform the Agency without delay if the Client considers that any Work submitted to the Client by the Agency for approval is false or misleading or in any way contrary to law or to any applicable Advertising Regulation.

11.  FINANCIAL PROMOTION.

11.1.  For the purposes of this clause, 'Financial Promotion' means any material advertised on the Platform by the Client pursuant to this Agreement that comprises or includes an invitation or inducement to engage in investment or other financial activity:

11.2.  The Client shall be responsible for ensuring that it, and every Financial Promotion, complies with all relevant rules, regulations and guidance from time to time.

11.3.  The Client warrants in relation to each Financial Promotion that:

11.3.1.  the Client is duly authorized to undertake the business in relation to the financial promotion; or

11.3.2.  if the Client is not required to be an authorised person, that such Financial Promotion will be approved by the relevant authority/ies prior to being communicated to any person; or

11.3.3.  such Financial Promotion is otherwise permitted.

12.  LIMITATION OF LIABILITY.

12.1.  The Agency's maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total remuneration payable to the Agency hereunder during the preceding 6 months.

12.2.  the Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.

12.3.  This Agreement states the full extent of the Agency's obligations and liabilities in respect of the performance of the Services. The parties agree that any condition, warranty representation or other term concerning the Advertising which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.

13.  CONFIDENTIALITY.

13.1.  Each party shall at all times use its best endeavors to keep confidential (and to procure that its employees and agents shall keep confidential) any confidential information which it or they may acquire in relation to the business and affairs of the other party to this Agreement and shall not use or disclose such information except with the consent of the other party or in accordance with the order of a court of competent jurisdiction.

13.2.  The obligation of each of the parties contained in clause 13.1 above shall continue without limit in point of time but shall cease to apply to any information which:

13.2.1.  the recipient can reasonably demonstrate is in the public domain otherwise than by breach of this Agreement by the disclosing party or by any person subject to an obligation of confidentiality;

13.2.2.  is already known to the recipient (as evidenced by its written records) at the date of disclosure and was not acquired directly or indirectly from the disclosing party;

13.2.3.  is required to be disclosed by law pursuant to a court order;

13.2.4.  is required to be disclosed by any recognized securities exchange or other regulatory body;

13.2.5.  is disclosed to or by any adviser to any of the parties to the extent required for the proper execution of his work.

14.  FORCE MAJEURE.

14.1.  Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of a party to this Agreement (including a labour dispute between a party to this Agreement and its employees as well as a labour dispute between a third party and its employees) (a 'Force Majeure Event').

14.2.  The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.

14.3.  If the party claiming the Force Majeure Event has complied with Clause 14.2, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues and the party will have a reasonable extension of time for performance of its obligations given all the circumstances. As regards the delay or stoppage arising from the Force Majeure Event:

14.3.1.  Any costs arising from such delay or stoppage shall be borne by the party incurring those costs;

14.3.2.  The party claiming the Force Majeure Event shall take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event;

14.3.3.  If the Force Majeure Event continues for more than thirty (30) consecutive days, the party which is not claiming the Force Majeure Event may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.

15.  TERMINATION.

15.1.  Either party may terminate this Agreement by service to the other party of a One (1) month notice.

15.2.  Either party may also terminate this Agreement forthwith by notice in writing to the other if the other party:

15.2.1.  is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or

15.2.2.  being a company, passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or

15.2.3.  being a partnership or other unincorporated association, is dissolved or being a natural person, dies; or

15.2.4.  becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or

15.2.5.  has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets;

15.3.  The parties' rights, duties and responsibilities shall continue in full force during the agreed period of notice and whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by the Agency until the end of the Term.

15.4.  Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, the Agency will give the Client all reasonable co-operation in transferring, all, documents, papers, materials and any other property delivered by the Client to the Agency pursuant to this Agreement, which may be in the Agency’s possession or under its control.

15.5.  For the avoidance of doubt, where the termination of this Agreement is a result of breach by the Client, or where there is termination by provision of Notice, the Agency shall pro-rate the fee chargeable as provided for under Schedule 1.

16.  DISPUTE RESOLUTION.

16.1.  All disputes or differences which shall at any time arise between the parties concerning this agreement or its construction or effect or the rights, duties or liabilities of the parties under it or any other matter in any way connected with or arising out of the subject matter of this agreement shall first be resolved through amicable negotiations between the parties.

16.2.  Failing such settlement, the disputes shall be referred to arbitration by a single arbitrator to be appointed by the chairman for the time of the Chartered Institute of Arbitrators (Kenya Branch) and every award made under this clause shall be expressed to be made under the Arbitration Act 1995 or other Acts for the time being in force in Kenya in relation to arbitration.

17.  GOVERNING LAW

This Agreement shall be governed by and construed in accordance with Kenyan law.

18.  MISCELLANOUS.

18.1.  This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.

18.2.  If any term or provision in this Agreement shall in whole or part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.

18.3.  No variation to this Agreement shall be effective unless done in writing and signed by each party or other authorized person.

18.4.  Any remedy or right conferred upon any party for breach of this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it and no exercise or pursuit or failure to exercise or pursue such a right or remedy shall constitute a waiver by any party of any other right or remedy.

18.5.  This is an Independent Contractor Agreement. Nothing in this Agreement shall be deemed to constitute a business partnership between the parties. 

18.6.  Any notice or other communication given or made under this Agreement shall be by letter or by facsimile transmission and may be delivered personally or by courier to the relevant party or sent by post or facsimile transmission number that is specified in this Agreement or such other address or number in Kenya as may be notified hereunder by that party from time to time for this purpose and shall be effectual notwithstanding any change of address or number not so notified.

Schedule 1

FEES & TERMINATION:

19.1The Client shall pay a fee depending on the monthly, quarterly, annual or other frequency selection of advertisement and its placement on the website exclusive of government taxes.

19.2The Agency will invoice the Client in respect of Agency fees upon selection of the advertisement and the Client shall pay the invoice within 5 business days. The advertisement will be activated 2 business days after receipt of payment.

19.3Payment of an invoice within a specified number of days means payment within that number of days after the receipt date of the invoice in question.

19.4The Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 24%. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Agency receives the full outstanding amount together with all accrued interest.

19.5Where the Client terminates this Agreement under the provisions of Clause 15:

a.      In the event the fees were payable on a monthly basis, there will be NO refund of fees given to a Client for cancellation.

b.      In the event the fees were payable on a quarterly basis, the Agency shall refund the Client any amount paid by the Client after deduction of an amount pro-rated to the month of termination (on the monthly fee basis) together with any other reasonable expenses incurred by the Agency in the termination. i.e. if a Client has paid the fees for 1 quarter and cancels the ad in the middle of the second month, the refund would be: Quarterly Fee MINUS 2 months fee on a monthly basis.

c.       In the event the fees were payable on an annual basis, the Agency shall refund the Client any amount paid by the Client after pro-rating a deduction based on number of full quarters and months elapsed and any other reasonable expenses incurred by the Agency in the termination i.e. if a Client has paid the fees for 1 year and cancels the ad in the middle of the eighth month, the refund would be: Annual Fee MINUS (Fee for 2 quarters on a quarterly basis + Fee for 2 months on a monthly basis)

The Yululate Advertising Service Agreement is entered into by and between Yululate Kenya Ltd, a limited liability corporation  and YOU and your heirs, agents, successors and assigns (collectively, You or Your) and sets forth the terms and conditions of your use of Yululate Advertising Service and its related services (the Advertising Services). By using the Advertising Services, You acknowledge that you have read, understand, acknowledge and agree to be bound by all the terms conditions of this Service Agreement as well as the Yululate Registration Agreement and any new, different, or additional terms or conditions that Yululate may establish from time to time at its sole discretion.