By clicking the Subscription and Service Agreement, you consent to the Terms & Conditions and legally enter into a contract with GWS Limited to have your waste audited

SUBSCRIPTION AND SERVICES AGREEMENT

THIS WASTE AUDIT SYSTEM SUBSCRIPTION AND SERVICES AGREEMENT, COMBINED WITH ALL ATTACHED EXHIBITS, REFERENCED DOCUMENTS AND ORDERS (COLLECTIVELY, THE “AGREEMENT”) IS A BINDING LEGAL CONTRACT BETWEEN YOU (DEFINED HEREIN AS THE CUSTOMER AND GWS LIMITED, WITH ITS PLACE OF BUSINESS AT YOUTH DRIVE, KAMUZU INSTITUTE OF SPORTS, MASINTHA GROUND, DONGA BUILDING, KAWALE II, LILONGWE CITY, MALAWI (COLLECTIVELY WITH ITS SUBSIDIARIES AND AFFILIATES) AND IS MADE EFFECTIVE UPON THE DATE OF ACCEPTANCE OF THIS AGREEMENT OR PROVIDING AN ORDER OR STATEMENT OF WORK TO GWS LIMITED.

BY CLICKING THE “YES, I CONSENT & SIGN” BUTTON BELOW OR PROVIDING AN ORDER OR STATEMENT OF WORK TO GWS LIMITED, YOU;

1. ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS, AND
2. REPRESENT AND WARRANT THAT, IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY (ORGANIZATION), YOU HAVE THE RIGHT, POWER AND AUTHORITY TO, AND DO, ACCEPT THESE TERMS AND CONDITIONS ON ITS BEHALF.

IN THE EVENT AN INDIVIDUAL IS ENTERED INTO AN AGREEMENT ON

BEHALF OF;

1. HIMSELF OR HERSELF, “YOU” (OR “YOUR”) REFERS TO SUCH INDIVIDUAL
2. A CORPORATE OR OTHER PUBLIC OR PRIVATE ENTITY, “YOU” (OR “YOUR”) REFERS TO THAT ENTITY, AND SUCH INDIVIDUAL CERTIFIES THAT HE/SHE IS AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, GWS LIMITED WILL NOT AND DOES NOT AGREE TO THE PROVISION OF ITS SERVICES.

GWS Limited and You, as “Customer”, are referred to herein individually as a “Party” and, collectively, as the “Parties” shall govern GWS Limited’s provision of a system subscription service and other professional services to Customer.

1. Definitions
   1. “Affiliate” means any corporation, partnership, joint venture, joint stock company, limited liability company, trust, estate, association, or other entity the existence of which is recognized by any governmental authority, (collectively an “Entity”) that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with Customer or any Entity in which Customer has any direct or indirect ownership interest, whether controlling or not, of at least 50%, at any time during the Subscription Term
   1. “Dedicated Contacts” means contacts set forth in clause 4 of the Support and Maintenance Agreement (Appendix B)
   1. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics of the System
   1. “Privacy Policy” means GWS Limited’s data privacy policy
   1. “System” means GWS Limited’s cloud-based Waste Audit System. Cloud software programs and applications which are made up of GWS Limited’s proprietary software as more adequately described in the applicable Subscription Order and Documentation.
   1. “Order” refers generally and collectively to the documents for services ordered by Customer such as a Subscription Order, Services Order or Statement of Work.
   1. “On-Site Solution” means, System installed on Customer’s hardware or infrastructure.
   1. “Professional Services” means professional services such as platform configuration, label design, user training provided pursuant to an Order for Professional Services. Professional Services under this Agreement do not include services provided by a third party distributor or reseller that may provide services under a separate agreement between Customer and that third party.
   1. “Pricing Schedule” means the document setting forth the Fees and pursuant to this Agreement.
   1. “System Service Level Agreement” or “SLA” means GWS Limited commitment for System uptime and connectivity as set forth in Appendix A that are applicable to the Subscription Services.
   1. “Statement of Work” or “SOW” means the document setting forth the specifications for Professional Services and pursuant to this agreement.
   1. “System” refers generally and collectively to all services provided by Waste Audit System to Customer as set forth in each Order, such as Subscription Services, Support Services and Professional Services. Services under this Agreement does not include services provided by a third party distributor or reseller that may provide services under a separate agreement between Customer and that third party.
   1. “SMA” means Support and Maintenance Agreement as attached to this Agreement as Appendix B.
   1. “Subscription Order” means an order for Subscription Services
   1. “Subscription Services” means cloud-based System provided by GWS Limited and Customer’s access to Waste Audit System as set forth in this Agreement and in a Subscription Order.
   1. “Subscription Term” means the term during which Customer may access the Waste Audit System.
   1. “Support Services” means the maintenance and support services included with an Order for Subscription Services as further set forth in Appendix B
   1. “Third Party Software” means software and services authored by a third party, including, the Google App Engine and Amazon Web Services.
   1. “User” means those individuals granted access to the System by the Customer’s administrator. Users may include Customer (or its Affiliate) employees, consultants, contractors, agents, and approved third parties with which Customer transacts business.
   1. “Work Product” means all error corrections, enhancements, new releases, and any other work product created by GWS Limited in connection with the support and maintenance services provided under this Agreement.

• Services

Only after GWS Limited has confirmed an Order, during the Subscription Term, GWS Limited agrees to provide the Customer with the Subscription Services, Professional Services and Support Services as set forth in each Order and in accordance with this Agreement. Support Services are included as a part of the Subscription Services License and will be provided in accordance with the Support Level Agreement. Professional Services are optional and, where provided, shall be set forth in an Order for Professional Services and corresponding SOW.

• Subscription Services License

Pursuant to the terms of this Agreement and the applicable Subscription Order, GWS Limited shall provide the Customer and Users with a subscription based access to the System on the following basis:

1. License Grant. After GWS Limited’s completion of any customization, implementation or configuration services as set forth in an order for Professional Services, commencing on the start date set forth in the applicable Subscription Order (the “Start Date”) and subject to the terms of the Agreement, GWS Limited grants to Customer and its Users, a non-exclusive, non-transferable, worldwide right to access the Waste Audit System in connection with the Subscription Services for up to a term as purchased by Customer in an Order. Customer may access the System for;
2. Customer’s own business use
3. Extend labeling to third parties with whom Customer does business (i.e. contract manufacturers and suppliers)
4. As a member of GWS Limited’s Partner Program to provide managed services to its customers on the same terms as those offered to Customer.
5. Updates. During the Subscription Term, GWS Limited reserves the right to update Customer’s profile so that it remains current with the then current version of System available to GWS Limited’s customers at no cost if not agreed otherwise between the parties.
6. Users. Customer is responsible for each of its Users’ acts and remains liable to GWS Limited for any User’s (including an authorized third party acting as a User on the Customer’s behalf) breach of the Agreement. During a Subscription Term, Customer may add, remove and manage Users via the administrative tools available within the Customer’s subscription account.
7. New Features. Over the course of the Subscription Term GWS Limited may introduce new features, functionality, software, or user types, that are only available under a different pricing model or on a version of System other than the version the Customer currently has access to use (“New Features”). In the event that the Customer desires to purchase New Features GWS Limited reserves the right, at its sole discretion, to update the Customer’s account, pricing model, or System version to facilitate the provision of such New Features.
8. Usage Restrictions. Unless expressly agreed otherwise in the applicable Order, Customer shall not gain or attempt to gain unauthorized access to any portion of the System, or its related software or networks, for use in a manner that would exceed the scope granted under the Agreement, or facilitate any such unauthorized access for any third party. If any unauthorized access occurs, the Customer shall promptly notify GWS Limited of the incident and shall reasonably cooperate in resolving the issue. The Customer shall not reverse engineer, de-compile, or disassemble any software or otherwise attempt to discover the source code thereof or permit any third party to do so. The Customer shall not attempt to disable or circumvent any security measures in place. The Customer may not knowingly reproduce or copy the System, in whole or in part. The Customer shall not modify, adapt, or create derivative works of the System. The Customer shall not use the System to store or transmit libelous or otherwise unlawful or tortious material or any material in violation of third party privacy rights. The Customer shall not knowingly interfere with, or disrupt the integrity or performance of the System or third party data contained therein.
9. Customer Liability for Affiliates and Users. Customer will be responsible for compliance of this Agreement by its Affiliates and any third party User and, for purposes of the foregoing, all obligations of Customer shall apply equally to each such Affiliate or User that accesses or receives the Services 

• Security; Customer Data
• Data Processing and Protection of Personal Data. GWS Limited shall process all personal data in accordance with this Section 4 and its Privacy Policy, which is hereby incorporated by reference and at all times in compliance with the data protection laws and/or other laws of any jurisdiction that may apply to the processing of such personal data (“Applicable Data Protection Laws”). By entering into this Agreement, Customer agrees to be bound by all of the terms and conditions contained in the Privacy Policy.
• Security. As a part of the Services, GWS Limited shall maintain appropriate administrative, physical, and technical safeguards for the security, confidentiality and integrity of any data or information inputted, edited, authored, generated, managed, or otherwise submitted by Customer or its Users into Customer’s subscription account (“Customer Data”). Such measures and safeguards include, but shall not be limited to, measures for preventing access, use, modification or disclosure of personal and confidential data by GWS Limited or its employees or agents except
• for providing Services and prevent or address service or technical problems
• to abide by the applicable law
• on the basis of Customer’s express permit.
• Log-Ins and Passwords. In addition to the foregoing obligations, Customer agrees to hold the System, Subscription Services and all associated log-ins and passwords in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied, or utilized therein, to anyone other than a User having a need for such disclosure, and then only to allow use of the System as authorized herein. Customer shall take all reasonable steps to ensure that the provisions of this section are not violated by any employee, User, or any other person under Customer’s control or in its service.
• Customer Data. Except as otherwise agreed in writing, Customer is responsible for the accuracy, truthfulness, consistency, completeness, and any output from the System, and consents to use of all Customer Data in accordance with the Agreement, and GWS Limited may neither have the responsibility to review, nor any liability as to the accuracy of, any information or content posted on the System.
• Compliance with Law. Customer’s and its Users’ access to the System will comply with applicable national and international law, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data. Customer represents and warrants to GWS Limited that Customer has sufficient rights in the Customer Data to authorize GWS Limited to process, distribute and display the Customer Data as contemplated by the Agreement, and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party.
• Web Analytics. In providing the Subscription Services, GWS Limited utilizes the services of third party cloud service and hosting service providers such as Google and Microsoft (“Cloud Hosting Providers”). GWS Limited may change its Cloud Hosting Providers at any time at its discretion. GWS Limited and its Cloud Hosting Providers may record and collect information related to Customer’s subscription account activity, including but not limited to web analytics (which includes latency, packet size, hops, and source destination) but may only use such information to improve the Services and/or fulfill its rights and obligations under the Agreement. Collection of such information by Cloud Hosting Providers is not individually linked to Customer or its Users, is de-identified, and is aggregated across all of GWS Limited’s customers. Any use of such information is subject to the terms of Section 7

5. Fees; Payment. Customer shall pay the fees associated with the applicable Services in an applicable Order (“Fees”) and as described below.

1. Invoicing. Unless otherwise specified in the applicable Order:
2. Customer shall pay all Subscription Fees at the beginning of the Subscription Term on a monthly or an annual basis no later than thirty (30) days from invoice date
3. GWS Limited may impose a late payment charge equal to the lesser of
4. one and one-half percent (1.5%) per month
5. the maximum rate allowed by law (as set forth in 12.4), beginning thirty-one (31) days from invoice date , and
6. if Customer has not paid all Fees in full within forty-five (45) days from invoice date, GWS Limited has the right to suspend provision of Services until full payment, including late payment charges, are paid by Customer. If Customer disputes any Fees invoiced, Customer must provide GWS Limited written notice of such dispute within fifteen (15) days from receipt of the applicable invoice. Customer and GWS Limited will then work in good faith to address such contested amounts, provided, however, that Customer will remain responsible for the portion of Fees that are not disputed. Notwithstanding, GWS Limited shall have the right to terminate this Agreement if Customer fails to pay fees when due under this Agreement, or pay for additional time (months) during the Term.
7. Taxes. Fees stated in the Orders do not include applicable taxes. Customer agrees to bear and be responsible for the payment of all taxes, except for taxes based upon GWS Limited’s income, including all sales, use harmonized, rental receipt, personal property, customs duties or levies, federal, provincial or foreign taxes or other taxes, which may be levied or assessed in connection with the Agreement. Customer shall pay such tax when due or reimburse GWS Limited as GWS Limited may request. If any tax is required to be paid by GWS Limited, the full amount of such tax will be billed to Customer separately, whether or not the Agreement is then in effect and promptly paid by the Customer.
8. Purchase Orders; Payment Processors. To the extent that the Customer requires the use of a purchase order prior to making any payments under the Agreement, the Customer’s failure to submit such a purchase order to GWS Limited does not excuse the Customer from payment of the Fees in the amounts, or in the manner, agreed upon herein or in the applicable Order. If the Customer requires the use of a third party for invoice processing, the Customer shall be the sole bearer of any cost and expense associated with such third party.
9. Fee Increases. Unless otherwise specified in an Order, GWS Limited may increase Fees for the Subscription Services not more than once in each twelve (12) month period upon forty-five (45) days prior written notice to the Customer. The Customer will only be responsible for increased Subscription Service Fees for those Subscription Terms subsequent to the Subscription Term in which Customer received such price increase notice. Once the parties have entered into a Service Order or SOW, GWS Limited may not increase such underlying Fees (in the absence of an agreed upon amendment or Change Order), provided that, after completion of the agreed upon Consulting or Onsite Services GWS Limited may increase the Fees associated with its general Consulting and Onsite Service offerings at its sole discretion.

6. Term; Termination

1. Term. The Agreement begins on the Effective Date above, and shall continue until all Orders associated with the Agreement have expired or have been terminated (the “Term”).
2. Subscription Term. Unless otherwise specified in a Subscription Order, the Subscription Services will begin on the Start Date in each applicable Subscription Order and remain in effect for the period specified therein (the “Subscription Term”). This Agreement and herewith the Subscription Services shall renew automatically on the same terms (except as set forth in section 5.d) for a subsequent Subscription Term, unless prior to such an expiration of the initial or any subsequent Subscription Term, the Customer provides notice to GWS Limited at least 30 days prior to such expiration, of its intent not to extend this Agreement to a subsequent Subscription Term.
3. Termination for Material Breach. Either party may terminate the Agreement, or any individual Order, for a material breach by the other party that is not cured within thirty (30) days after written notice of such material breach. The non-breaching party may elect to terminate the applicable Order only or the Agreement as a whole (and thus, all Orders hereunder). In the event the Agreement is terminated due to GWS Limited’s uncured material breach, GWS Limited will refund all unearned Fees within thirty (30) days of the termination effective date. Parties agree, that GWS Limited is entitled to terminate this Agreement in case of non-payment of any Fees due under this Agreement and its appendices.
4. Termination for Bankruptcy. Either party may terminate the Agreement or any Order, or suspend its performance hereunder or thereunder, if the other party becomes insolvent or bankrupt or ceases to do business.
5. Effect of Termination or Expiration. Upon expiration or termination of all Subscription Orders (unless Customer subsequently purchases an additional Subscription Order), Customer’s rights granted under this Agreement shall terminate and Customer and its Users shall no longer have access to the System. Notwithstanding, Customer shall be granted access to all Customer data for a period of thirty (30) days after the effective date of termination or expiration. Parties agree that should the Customer require a longer period after the effective date of termination or expiration for access to all Customer data, such shall be granted to the Customer subject to the Fees payable under this Agreement calculated pro-rata to the length of such additional period.
6. Survival. Neither expiration nor termination of the Agreement will terminate those obligations and rights of the parties pursuant to provisions of the Agreement which by their express terms are intended to survive and such provisions will survive the expiration or termination of the Agreement. Without limiting the foregoing, the respective rights and obligations of the parties under Sections 1, 4, 5, 7, 8, 10, 11 and 12 of this Agreement will survive the expiration or termination of the Agreement regardless of when such termination becomes effective.

7. Confidentiality

1. Confidential Information. In connection with the Agreement, each of the parties may disclose to the other party information that relates to the disclosing party’s or disclosing party’s customers’ business operations, financial condition, customers, products, services, or technical knowledge (“Confidential Information”). Except as otherwise specifically agreed in writing, each party agrees that:
2. all information communicated to it by the other in connection with the Agreement and identified as confidential
3. any information exchanged between the parties in connection with Customer’s purchase of any additional Services
4. all information communicated to it that reasonably should have been understood by the receiving party, because of confidentiality, descriptions or similar legends, the circumstances of disclosure or the nature of the information itself, to be confidential to the disclosing party, will be Confidential Information and will be deemed to have been received in confidence and will be used only for purposes of the Agreement. GWS Limited Confidential Information includes the Software, Services, Fees, the terms of the Agreement, development plans, and any security specifications, reports or assessments related to the System, GWS Limited or its Cloud Hosting Providers. Customer Confidential Information includes Customer Data.
5. Standard of Care; Third Parties. Each party, including all Affiliates and Users, will use at least the same degree of care to safeguard and to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure or publication of its own information (or information of its customers) of a similar nature, and in any event, no less than reasonable care. Each party may disclose relevant aspects of the other party’s Confidential Information to its employees to the extent such disclosure is reasonably necessary for the performance of its obligations, or the enforcement of its rights, under the Agreement; provided, however, that the Customer shall ensure that its Affiliates and each User shall comply with these confidentiality provisions. All third persons engaged by any party shall be in compliance with this Section 7.
6. Exclusions; Permitted Use. This section will not apply to any particular information that either party can demonstrate
7. was, at the time of disclosure to it, in the public domain
8. after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party
9. was in the possession of the receiving party at the time of disclosure to it and was not the subject of a pre-existing confidentiality obligation
10. was received after disclosure to it from a third party who had a lawful right to disclose such information (without corresponding confidentiality obligations) to it
11. was independently developed by or for the receiving party without use of the Confidential Information of the disclosing party. In addition, a party will not be considered to have breached its obligations under this Section 7 for disclosing Confidential Information of the other party to the extent required to satisfy any legal requirement of a competent governmental or regulatory authority, provided that promptly upon receiving any such request, and to the extent it is legally permissible, such party advises the other party prior to making such disclosure and provides a reasonable opportunity to the other party to object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or (subject to applicable law) take such other action as it considers appropriate to protect the Confidential Information.
12. Unauthorized Access. Each party will:
13. notify the other party promptly of any material unauthorized possession, use, or knowledge of the other party’s Confidential Information by any person that may become known to such party
14. promptly furnish to the other party details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information
15. use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights
16. promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use, or knowledge of Confidential Information.

8. Ownership

1. GWS Limited Ownership. GWS Limited retains all ownership of and title to, and all intellectual property rights in, the System, Services, and all software, equipment, processes, facilities, and materials utilized by or on behalf of GWS Limited to provide the same, including all patents, trademarks, copyrights, trade secrets, and other property or intellectual property rights. Customer acknowledges and agrees that GWS Limited shall own all rights, title and interest in and to any modifications, derivative works, changes, expansions or improvements to the System, and Services, without any other or subordinate right whatsoever being held by the Customer. The Customer shall acquire no rights therein other than those limited rights specifically conferred by the Agreement. The Customer may not create derivative works based upon the System, or Services in whole or in part, or develop or request third parties to develop or modify any software based on ideas, processes, or materials incorporated therein. All rights related to the System, or Services that are not expressly granted to Customer under the Agreement are reserved by GWS Limited. Except if expressly permitted by GWS Limited in writing this Agreement does not grant the Customer any right to use GWS Limited trademarks or any other GWS Limited brand elements.
2. Customer Ownership. With the exception of a license granted to GWS Limited to use Customer Data solely for the purpose of performing the Services, GWS Limited acquires no right, title, or interest from Customer or its Users to Customer Data, including any intellectual property rights therein. Subject to the Agreement, Customer, its Users and each of its Affiliates hereby grant GWS Limited a limited, royalty-free, fully-paid up, non-exclusive and non-transferable license to process Customer Data solely as necessary to provide the Services for Customer’s and such Affiliates’ benefit as provided in the Agreement (and as otherwise instructed by Customer or a User) for so long as Customer or any User uploads or stores such Customer Data in the System

9. Warranties; Warranty Disclaimers

1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
2. it is duly organized, validly existing, and in good standing as an institution or other entity under the laws of the jurisdiction of its incorporation or other organization
3. it has, and throughout the Subscription Term, will retain, the full right, power, and authority to enter into the Agreement and perform its obligations hereunder
4. the execution of this System, Subscription and Services Agreement by its representative set forth below has been duly authorized by all necessary corporate or organizational action of such party
5. when executed and delivered by both parties, an Order incorporating these clauses of System, Subscription and Services Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
6. GWS Limited Representations and Warranties. GWS Limited warrants
7. that the System will perform materially in accordance with the Documentation and the Agreement
8. to use reasonable efforts to correct material defects that are reported by the Customer or its Users as further set forth in the Service Levels (if a malfunction is due to a problem with Customer hardware or software, GWS Limited will so inform Customer and it will be the Customer’s responsibility to obtain and pay for any repairs or modifications required to such Customer’s hardware or software)
9. the Services will be performed in a timely, professional, and workmanlike manner with a level of care, skill, practice, and judgment consistent with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet GWS Limited’s obligations under the Agreement
10. the Documentation will be reasonably updated so that it continues to describe the System and Services in all material respects
11. to the best of its knowledge, the System does not contain code whose purpose is to disrupt, damage, or interfere with Customer systems, software, or Customer Data, including but not limited to any virus, Trojan horse, time bomb, malware, or any other malicious code that collects data or accesses the Customer’s network without the Customer’s knowledge.
12. Customer Acknowledgments. The Customer accepts responsibility for the selection of the Services to achieve the Customer’s intended results. The Customer is solely responsible for obtaining all necessary rights and consents to enter Customer Data into the System and hereby warrants that providing Customer Data to GWS Limited under the Agreement will not violate or infringe the rights of any third party.
13. Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SYSTEM AND SERVICES ARE PROVIDED “AS IS.” GWS LIMITED, ITS LICENSORS, AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND GWS LIMITED EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. GWS Limited does not warrant that the System or Subscription Services:
14. will be uninterrupted or error free
15. will operate in combination with other hardware or software unless such hardware or software is expressly approved or recommended by GWS Limited. Customer acknowledges and agrees that GWS Limited and its licensors are not responsible for:
16. the accuracy or integrity of any Customer Data
17. the performance of the Customer’s or its Users’ equipment
18. delivery of services or connectivity provided by third parties to the Customer and its Users
19. any loss or corruption of Customer Data that occurs as a result of transmitting or receiving Customer Data or viruses due to the Customer’s, or its Users’, connection and access to the internet.

10. Indemnification

1. GWS Limited Indemnification. GWS Limited will
2. defend the Customer from and against any claim made by a third party alleging that the System, when used as authorized under the Agreement, directly infringes such third party’s patents, copyrights, or trademarks
3. in relation to such claim, GWS Limited indemnify and hold harmless the Customer from any damages and costs finally awarded or agreed to in settlement by GWS Limited (including reasonable attorneys’ fees).
4. Notice of Obligation. GWS Limited’s obligations under Section 10 are expressly conditioned on the following: The Customer shall
5. promptly notify GWS Limited in writing of any such claim of which the Customer has actual knowledge (provided that failure to do so will only release GWS Limited from this obligation to the extent that such failure led to material prejudice)
6. in writing, grant GWS Limited sole control of the defense of any such claim and of all negotiations for its settlement or compromise, provided that no such settlement or compromise may impose any monetary or other obligations on the Customer
7. reasonably cooperate with GWS Limited to facilitate the settlement or defense of the claim.
8. Replacement System. Should the System become, or if in GWS Limited’s opinion is likely to become, the subject of a claim of infringement of a patent, trade secret, trademark, or copyright, GWS Limited may
9. procure for the Customer, at no additional cost to the Customer, the right to continue to use the System
10. replace or modify the System, at no cost to the Customer, to make it non-infringing, provided that the same function is performed by the replacement or modified System
11. if in GWS Limited’s judgment the right to continue to access the System cannot be reasonably procured or the System cannot reasonably be replaced or modified, terminate the Agreement (or the applicable Order) and grant the Customer a pro-rated refund of any advance Fees paid applicable to the remainder of the Subscription Term. This Section 10 states the entire liability of GWS Limited with respect to infringement by GWS Limited System, or any parts thereof, and GWS Limited shall have no additional liability with respect to any alleged or proven infringement.
12. Customer Indemnification. The Customer, on behalf of itself and its agents, will indemnify and hold harmless GWS Limited and its Affiliates, and their officers, directors, employees, agents, consultants and contractors (a “GWS Limited Indemnity”) from and against any claim, lawsuit or cause of action (including attorney fees and costs) brought by a third party against a GWS Limited Indemnity to the extent that it is
13. based on a claim regarding the access to the System or Services in violation of this Agreement, an Order or the Documentation
14. based on a breach of any express warranty contained in this Agreement
15. in violation of any third party intellectual property right or confidential information. Except to the extent that the Customer fails to defend GWS Limited as required herein, the Customer shall have the right to control the defense of all such claims, lawsuits, and other proceedings. Except to the extent that the Customer fails to defend GWS Limited as required herein, GWS Limited shall not settle any such claim, lawsuit, or proceeding without the Customer’s prior approval, and the Customer shall have no liability for any such unapproved settlement so made.

1. Limitation of Liability
   1. SUBJECT TO SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
2. SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SYSTEM, SOLUTION, SERVICES, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES OR ANY ORDER, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
3. ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF THE CUSTOMER’S MISUSE OF, OR INABILITY TO USE, THE SYSTEM IN ACCORDANCE WITH THE DOCUMENTATION, OR THE PERFORMANCE OR NONPERFORMANCE OF THE SYSTEM OR SERVICES.

GWS LIMITED’S MAXIMUM LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE FEES PAID BY THE CUSTOMER UNDER THE APPLICABLE ORDER TO WHICH THE CLAIM RELATES DURING THE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

12. Miscellaneous

1. Public Announcements. Unless otherwise agreed by the parties in writing, Customer grants GWS Limited the right to use the Customer’s name, logo, trademarks, quotes, and/or trade names in press releases, product brochures, sales presentations, financial reports, webinars, and on its websites indicating that the Customer is a customer of GWS Limited. All other public statements or releases require the mutual consent of the parties.
2. Relationship of the Parties. The parties agree they are independent parties. Neither party shall be considered to be a partner, joint venture, employer, or employee of the other under the Agreement. The Agreement creates no agency in either party, and neither party has any authority whatsoever to bind the other party in any transaction nor make any representations on behalf of the other party.
3. Notice. Any notice or demand which is required to be given under the Agreement will be deemed to have been sufficiently given and received for all purposes when delivered by hand, email, or courier, or five (5) days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, to the address, or the e-mail address identified in the applicable Order, and to the attention of such other person(s) or officer(s) as either party may designate by written notice.
4. Governing Law. This Agreement shall be construed in accordance with
5. to the extent you use (if you are an individual), or to the extent were organized in (if you are a corporate entity), the laws of Malawi
6. to the extent you use (if you are an individual), or to the extent were organized in (if you are a corporate entity), in Southern Africa Development Cooperation (SADC)

The parties agree that

1. to the extent the governing law is determined under Section 12.4(i), all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in Malawi
2. to the extent the governing law is determined under Section 12.4(ii), all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the courts located in SADC’s headquarters.

This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non convenience or similar doctrine or to object to venue with respect to any proceedings brought in accordance with this Section. Any action of any kind brought by you and arising out of or in any way connected with this Agreement must be commenced within one (1) year of the date upon which the cause of action accrued.

• Assignment. Neither party may assign the Agreement, or any of its interest herein, without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed; provided, however, that no such prior approval shall be required for an assignment in connection with a sale of all or substantially all of a party’s business related to the subject matter of the Agreement or any merger, sale of a controlling interest, or other change of control of such party. In the event of assignment as mentioned in the previous sentence, the assigning party shall provide written notice as soon as is reasonably practicable. The Agreement applies to and binds the permitted successors and assigns of the parties.
• Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under the Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, or failures or delays in transportation or communications (each, a “Force Majeure Event”). The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of the Agreement.
• Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach by either party of any of its obligations under Sections 4 or 7 will cause immediate and irreparable harm to the non-breaching party for which monetary damages may not constitute an adequate remedy. Accordingly, the breaching party acknowledges and agrees that the non-breaching party shall be entitled to injunctive relief for the breaching party’s obligations herein, without the non-breaching party having to prove actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for the breaching party’s breach of the Agreement, but shall be in addition to all other remedies available to the non-breaching party at law or in equity.
• Further Assurances. The parties shall reasonably cooperate with each other to provide such further assurances as may be reasonably required to better evidence and reflect, or to show the ability to carry out the intent, purposes, and obligations of the Agreement.
• Entire Agreement. On the Effective Date, the Agreement supersedes all previous discussions, negotiations, understandings, and agreements between the parties with respect to its subject matter, including any non-disclosure agreements and/or obligations which will be expressly superseded in their entirety by this Agreement. No oral statements or material not specifically incorporated herein will be of any force and effect. With the exception of any terms or conditions associated with additional Services available for purchase via GWS Limited’s website that have been accepted or acknowledged (electronically or otherwise) by Customer or a User, no changes in or additions to these Terms and Conditions will be recognized unless incorporated herein by amendment and signed by duly authorized representatives of both parties. The application of Customer’s terms and conditions in any purchase order are hereby expressly excluded and objected to by GWS Limited. If there is any inconsistency between the terms of this Agreement and the terms of any Orders or other documents referenced in this Agreement or an Order, this Agreement shall have priority and then the express terms of an Order.
• Waiver. The waiver by either party of a breach or violation of any provision of the Agreement will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof.
• Unenforceability. In the event any provision of the Agreement is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of the Agreement, which will remain in full force and effect and enforceable in accordance with its terms. With respect to any unenforceable provision, the applicable arbitrator or court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent, the intent and agreements of the parties set forth herein.
• Counterparts. This Agreement may be executed in any number of counterparts and by facsimile or e-mail, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument.