In this schedule unless the context dictates otherwise, these words will take on the following meanings:
1.1. Company means a business entity, a limited liability company, a partnership, or sole trader or sole proprietorship legally registered, licensed and recognized by local authorities with jurisdiction (as the case may be for individuals) who opens a business account on the Patasente platform for the context of this schedule can legally perform any of functions and transactions on the Platform.
1.2. Affiliate means any company that is from time to time a holding company, subsidiary or a subsidiary of a holding company of the Platform Provider. For this purpose, 'holding company' and 'subsidiary' shall have the meanings given to them in the Companies Act.
1.3. Platform means the Patasente online and mobile system provided by the Platform Provider to facilitate and enable users on the Patasente platform perform the functions and transactions offered on the Platform via the internet site located at such web address, or mobile application or USSD application or desktop application/software or any other as the Platform Provider may notify the company from time to time.
1.4. The Platform Provider means Patasente Limited, a financial supply chain management company located on Plot 1674, Valley Curve, Kiwatule Road, Ntinda, Kampala Uganda providing electronic platform(s)-“the Platform(s)” for “trade/commercial transactions interactions” between The Supplier and the Buyer which includes but not limited to electronic procurement- issuing and approving purchase orders, invoices, pro-formas, invoices, etc electronic payments- settling payments for invoices or otherwise and electronic financing- providing financing against purchase orders or invoices and or facilitating discounting of invoices or sale of accounts receivables and any others as may be included in the Platform(s) provided to the company for which it has a Business Account.
1.5. Buyer means a company who is customer of the Seller or Supplier to whom it supplies goods and/or services and who is activated on the System with a Business Account and with whom the Seller enters into Transactions and is Party to this agreement.
1.6. Seller means a company who is a Supplier of the Buyer who supplies goods and/or services and who is activated on the System with a Business Account and with whom the Buyer enters into Transactions and is Party on to this agreement.
1.7. Business Account means the account that the company opens on the Platform (s) provided by the Platform Provider and which account has authorized users and has been verified by the Platform Provider as true, singly owned and belonging to the company and bears the Verified Signature/Mark.
1.8. Authorized User means employees, agents or contractors of the Seller or Buyer whom it has designated as being authorized to access the System on its behalf and who have been provided Logins to access the System by the Platform Provider;
1.9. Confidentiality Exceptions mean circumstances in which information is: (a) part of the public domain or generally known to the general public or organizations engaged in the same or similar businesses as the receiving Party on a non-confidential basis without any breach of this Agreement by the receiving Party; (b) known by the receiving Party prior to disclosure to it hereunder without any obligation to keep it confidential; (c) disclosed to the receiving Party by a third party which, to the best of the receiving Party’s knowledge, is not required to maintain the information as confidential; (d) independently developed by the receiving Party without reference to Confidential Information of the other Party; or (e) to be the subject of a written agreement whereby the other Party consents to the disclosure of such Confidential Information on a non-confidential basis;
1.10. Confidential Information means information of a Party, that the other Party knows or ought reasonably to know to be confidential to such first Party, including the Seller or Buyer Information and any information relating to the use and operation of the Platform, unless a Party can demonstrate by clear and convincing evidence that one or more of the Confidentiality Exceptions applies to the information.
1.11. Intellectual Property Rights means all rights in inventions, patents, copyrights, design rights, database rights, trademarks and trade names, service marks, trade secrets, know-how and other intellectual property rights (whether registered or unregistered) and all applications and rights to apply for any of them anywhere in the world in relation to the System;
1.12. Logins mean usernames and passwords for Authorized Users to access the System;
1.13. Losses means claims, liabilities, losses, damages, costs and expenses (including costs of collection, legal costs and disbursements);
1.14. Message means any message sent using the System, including any communication relating to a Transaction, but does not include any formal contractual notices;
1.15. Payments means any fund transfers related or not related to settlement of invoices or other purchases or transfers of funds between users on the system.
1.16. Party or Parties means each or both of the Seller, the Buyer and the Platform Provider, as the context requires.
1.17. Platform means the Online or Mobile System, Application and or the Website;
1.18. Policies and Procedures mean printed and/or online information provided from time to time by the Platform Provider to the Seller about the use of the Platform, including all notices, terms, policies and procedures of any kind posted on the Website.
1.19. AFA means the ‘Accounts Financing Agreement and BTA means the Borrower Terms and Conditions Agreement
1.20. Records mean the records in the system for all transactions or uploaded documents by users on the system.
1.21. The Regulator means any regulator or governmental body or agency (including without limitation the Financial Regulator) having jurisdiction over the Platform Provider or any of its Affiliates from time to time or whose consent, approval, permission or authority is required for the Platform Provider or any of its Affiliates to carry on their business lawfully;
1.23. Company Data or Seller data and users includes, where appropriate, the Authorized Users; Seller Information means information provided by the Seller pursuant to this Schedule relating to the Seller's business, including the content of any Messages, Authorized User information and Transaction data;
1.24. Company Data or Buyer data and users includes, where appropriate, the Authorized Users; Buyer Information means information provided by the Buyer pursuant to this Schedule relating to the Buyer's business, including the content of any Messages, Authorized User information and Transaction data
1.25. System means the online and mobile system to facilitate trade/supplier finance provided by the Platform Provider or its Affiliates or licensors and made available via the Website. Mobile application, USSD, or Desktop software or any other platforms the Platform provider may provide;
1.26. Transaction means a trade/supplier finance transaction permitted under the AFA transacted over or using the System and any other transactions that can be done over the system which include but are not limited to issuing, sending and approving invoices, purchase orders, delivery notes, finance requests, wallet payments as they appear and provided for in the platform.
1.27. Virus means any software virus, worm, logic bomb, Trojan horse, time lock, time bomb, cancelbot or malicious code or software of any kind, or anything(s) similar to any of the foregoing or analogous to them;
1.28. Website means the Internet site located at such web address as the Platform Provider may notify the Seller from time to time.
1. The System Sublicense 1.1. Grant of Sublicense
(a) Subject to the terms of this Schedule, the Platform Provider hereby grants the company- Seller and the Buyer a limited, revocable, personal, non-exclusive, non-transferable sublicense, without right to further sublicense, during the term of this Schedule to access and use the Platform, solely for the purposes contemplated by this Schedule (the "Sublicense") and as accepted by the Platform, and the Seller or Buyer shall have no other right, title or interest to or in the Platform.
(b) The Seller and the Buyer acknowledge that all right, title and interest in and to the Platform, including without limitation, all Intellectual Property Rights, are vested, and shall remain vested, in the Platform Provider, its Affiliates and/or its licensors. All right, title and interest in and to revisions, upgrades, updates, derivative works and other improvements to the Platform vest solely in the Platform Provider, its Affiliates or its licensors. Except for the grant of the Sublicense, nothing in this Schedule shall act to operate as an assignment or other transfer of any of such rights to the Seller.
(c) The Seller and the Buyer confirms that the Platform Provider, its Affiliates and licensors may use any Message, Transaction Data or other information posted by or on behalf of the Seller or the Buyer for the purposes of providing services and processing Transactions under the AFA, the BTA- Borrower Terms and Conditions Agreement, other agreements signed between the Buyer, Supplier and the Platform Provider or any other transactions available to the users operating and being maintained on the Platform.
2. System Usage 2.1. The company’s Authorized Users may access and use the Platform only in accordance with this Schedule and the Policies and Procedures.
2.2. The Platform Provider may at its sole discretion amend the Platform or the Policies and Procedures at
any time and the company’s continued use of the Platform shall be deemed notice and complete
acceptance of same.
2.3. The company shall either use the Website, Mobile, USSD or Desktop Application to access the System, and may download and print reasonable extracts from the Platform and or save reasonable copies of data posted on the Platform to the Seller’s and the Buyer’s cloud storage in the account, in each case solely for the purposes contemplated by this Schedule. All other use of Platform content is forbidden. No other right or license is granted in respect of the content of the Platform.
3. Security, Authorized Users and Access 3.1. The issuance of Logins to Authorized Users and the rules and particular roles applicable to the various types of Authorized User shall be in accordance with the Policies and Procedures.
3.2. The company warrants that each of its Authorized Users is authorized to bind the company and agrees to be bound by any usage of the System that occurs under any of its Authorized Users' Logins, unless it has previously notified the Platform Provider in writing or via electronic transmission on the system that particular Logins or Authorized Users are to be cancelled or their security has been compromised.
3.3. The company shall ensure that only its Authorized Users access the Platform and shall procure that its Authorized Users: (a) maintain the secrecy of their Logins and do not disclose their Logins to any other person; and (b) are informed of and abide by the Policies and Procedures.
3.4. The company shall keep confidential, and maintain reasonable security measures to keep the System confidential. The company agrees that: (a) it will not interfere with or circumvent any information or instruction that is to be transmitted through the Platform, or with the restrictions on functionality or information on the Platform; (b) it will not introduce to the Platform any Virus and will ensure that any information system under its control that may directly or indirectly be connected to the Platform is regularly scanned for Viruses by up to date industry standard virus scanning and protection software; and (c) it will ensure that all Messages being communicated by the company through the Platform are sent in accordance with this Schedule and the Policies and Procedures.
3.5. The company shall immediately notify the Platform Provider in writing if it becomes aware of any unauthorized use, loss or theft of its Authorized Users' Logins or if the company becomes aware or suspects that any of them have become known by an unauthorized person. Upon such notification, the Platform Provider may (at its absolute discretion) revoke, suspend or disable such Logins and/or issue new Logins to the company.
3.6. The company shall not, and shall procure that any of its representatives do not, access or attempt to gain access to any part of the Platform that is not permitted under its Logins.
3.7. The company shall not use the Platform as or in connection with a bureau service or for the provision of services to third parties unless with written permission from the Platform Provider.
4. Messages and Transcations 4.1. The company shall use the System to send all Messages and perform all Transactions under this schedule, or as provided by the system and or in connection with the AFA, BTA or any other agreements signed between the company and the Platform Provider. The company may also use the platform to communicate formal contractual notices as may be provided for by the system.
4.2. Any Message or any Transaction which appears to the Platform Provider to have been sent or entered into by the Seller or the Buyer via the System are as valid, enforceable, and legally binding on the Seller or Buyer as if manually executed and delivered in written form, and the Platform Provider and any relevant user are entitled to rely thereon irrespective of any error or fraud contained therein or the identity of the individual who sent the Message or executed the Transcation, except to the extent that such error or fraud or use of the System by an unauthorized third party is a result of the failure by the Platform Provider to use commercially reasonable security measures to prevent unauthorized access to the System.
5.1. The company-the Buyer- may use the System to make payments on all invoices issued through and approved through the Platform and to transfer funds to other users on the platform.
5.2. The company- the Supplier- that issues and sends an invoice which is approved on the platform may receive payments on the said due invoice from the Buyer through the platform and transfer funds to other users on the platform.
5.3. The company may use the system to make any other payments or transfer funds to other users on the platform as may be needed by the company and may withdraw such funds as through the means or options provided to the company on the Platform.
5.4. In respect and as per the AFA and BTA, the company on the platform that takes the identity of a Buyer in any given transaction courtesy of receipt and approval of an invoice from the Supplier, for which a supplier has requested an early payment, discounted invoice financing, or sold their accounts receivable, and for which the Buyer has been notified of such transaction, the Buyer shall make payments on the said due invoice through the platform to the Supplier Business Account from the Buyer Business Account on the Platform.
5.5. In respect and as per AFA and BTA, the company on the platform that takes the identity of a Supplier in any given transaction courtesy of issuing, sending and receiving approval of an invoice from the Buyer on the platform, for which the supplier has requested an early payment, discounted invoice financing, or sold the said accounts receivable, and for which the Buyer has been notified of such transaction, the Supplier shall receive payments on the said due invoice through to the platform to the Supplier Business Account from the Buyer Business Account on the Platform.
5.6. In respect and as per the AFA and BTA, the company on the platform that takes the identity of a Buyer in any given transaction courtesy of receipt and approval of an invoice from the Supplier, for which the said invoice is due, and the Buyer requests the Platform Provider to make payment on the due invoice, the supplier shall receive the payment on the said due invoice through the platform to their Supplier Business Account on the platform. The supplier shall accept and receive payments on the said invoice from the Platform Provider to the said account. The Buyer shall make payments to the Platform Provider on the said financed invoices through the platform to the Platform Provider’s Business Account on the platform unless stated otherwise.
5.7. In respect and as per the BPN Terms and BTA, the company on the platform that is either the Buyer or Seller that requests for purchase order financing or stock financing, and receives the said financing, the company shall require that the company at the other end of the transaction, i.e the buyer pays the company- the supplier through the platform to their Supplier or Buyer Business Account.
6. System Availability 6.1. The company acknowledges and agrees that: (a) the Platform Provider does represent and warrant that the Platform will be error-free and available without interruption; (b) the Platform Provider clarifies that available without interruption does not include times where will be downtime from time to time when the System cannot be accessed and is under maintenance.
7. Default 7.1. Any failure of the company to perform any or all of its obligations under Agreement and any other agreement signed by and through the use of the platform shall be deemed to be a material breach of this Agreement.
8. Confidentiality 8.1. Subject to the Confidentiality Exceptions, each Party agrees to maintain the confidentiality of any Confidential Information of the other Party, and to use such Confidential Information only for the purposes of exercising its rights and performing its obligations under this Schedule.
8.2. Notwithstanding the foregoing, either Party may disclose Confidential Information obtained from the other Party to any authority of competent jurisdiction if disclosure is required pursuant to a court order or instruction or request of any Regulator or supervisory authority having jurisdiction over it, provided that the disclosing Party shall have given the other Party prompt notice thereof (unless it has a legal obligation to the contrary) so that the other Party may seek a protective order or other appropriate remedy to prevent disclosure.
8.3. Notwithstanding the other provisions of this Schedule, the Platform Provider may compile, copy, modify, license and exploit any and all data entered into the System by or on behalf of the company, including without limitation Transaction data, Message data and statistical click-stream data, provided always that such data has been anonymized such that it does not compromise any Personal Data and that it does not directly or indirectly identify any individuals, the company, any company or any other corporate entities.
9. Representations and Warranties
The company hereby represents, warrants and covenants to and with the Platform Provider as follows:
9.1. the company’s use of the Platform is solely to settle genuine and lawful commercial trade transactions, arising in the ordinary course of business, for the sale and purchase of goods and/or services between the Seller and its Buyers on the platform and pursuant to the AFA, BTA and any other agreements signed between the Platform Provider and the company. The company shall not use the Platform for any arbitrage functions or purposes, or for any money laundering purpose, or in contravention of any law or regulation, and Messages issued at the company’s request shall not be, and are not intended to be, used in furtherance of any of the foregoing;
9.2. the company has independently verified or shall independently verify the validity of the entity and account information and any changes to such information stored on the System with respect to each other account user on the platform with whom the company transacts business.
9.3. The company acknowledges that the Platform Provider has no obligation to inspect or view the content of Messages and that the Platform Provider has no liability in the event that the any other company-either Buyer or Supplier with whom it transacts is in breach of this obligation- the company shall comply with all relevant laws and regulations applicable to this Schedule and transactions conducted using the Platform including, without limitation, all applicable sanctions and export control laws;
9.4. Information provided by the company to the Platform Provider from time to time in connection with this Schedule is and shall be true and accurate in all material respects, and the Platform Provider is hereby authorized from time to time to verify information about the company from any source and in any manner the Platform Provider may deem fit.
9.5. The company and the Platform Provider severally represent, warrant and covenant that it has the power and authorizations to enter into and perform, and deliver this Schedule and the transactions contemplated by this Schedule, and that the same do not contravene any contract binding on or affecting it, does not violate applicable law or regulation, and does not require any notice, filing or other action to or by any governmental authority and where if required, the company has acquired the said notices, made the said filings to any government authorities where it is required.
9.6. Except as expressly provided in this Schedule, no representation, warranty, term or condition, express or implied, statutory or otherwise, is given or assumed by the Platform Provider in respect of: (a) the System and/or the Website; (b) the company’s underlying commercial transactions; or (c) the goods or services to which such underlying transactions relate (regardless of any assistance that the Platform Provider or its Affiliates may, in its sole discretion, provide to the company). All such representations, warranties, terms and conditions (whether express, implied or otherwise) are excluded, except to the extent prohibited by law. Without limiting the foregoing, the company understands that neither the Platform Provider nor its Affiliates is giving any representation, condition or warranty (whether express, implied or otherwise) as to condition, performance, fitness for purpose, suitability, merchantability, non-infringement, quality, or otherwise, except as expressly provided in this agreement.
The company covenants and agrees to indemnify the Platform Provider, its Affiliates, its licensors, employees, officers, directors and agents (each, an "indemnified party") from and against all Losses (including those relating to the enforcement of this indemnity) arising out of or in any way relating to reliance by the Platform Provider on any Message or Transaction that appears to have been sent or entered into between the Seller and the Buyer using the Platform or as a result of any Message or Transaction containing information or material which is unlawful, offensive of defamatory; or any breach of the company’s obligations under this Schedule, or any suit, demand, claim or other dispute with respect to a Message or Transaction by the company using the System, except to the extent that such Losses are caused by the fraud or willful misconduct of the indemnified party, or any of its respective employees, officers, directors and agents.
11. Information, Data and Access
11.1. The company shall maintain sufficient records of all Messages and Transactions sent or entered into by it using the System and otherwise with respect to its obligations and activities in connection with this Schedule, including (without limitation) information with respect to any underlying commercial trade transaction (or associated disputes) to which it is a party, and with respect to compliance of such transactions with applicable laws and regulations ("Records"). The company shall retain each Record required to be maintained under this Clause during the longer of (i) the term of this Schedule, (ii) the term of the AFA, iii) the term of any other agreements signed between the Platform Provider and the Company or (iv) as may be required by law or regulation.
11.2. The company shall provide the Platform Provider with copies of any Records as the Platform Provider may require, or the company shall allow the Platform Provider to examine and take copies of the Records, or any part of them, which are reasonably required in order to comply with an order, instruction or request from any authority of competent jurisdiction, or to ensure compliance with or in connection with the performance of the terms of this Schedule.
12.1. Limitation on Liability: (a) The Platform Provider and its Affiliates shall not be liable for any Losses suffered by the company arising out of or relating to any of its actions or omissions to act hereunder, except to the extent that any such Losses are caused by the Platform Provider’s willful misconduct or fraud. (b) Neither Party shall be deemed to be in default of any of the obligations required to be performed by it under this Schedule to the extent that performance thereof is delayed, hindered or becomes impossible because of any cause beyond the reasonable control of such Party.
12.2. No Implied Duties: (a) The Platform Provider shall be obliged to perform such duties and only such duties as are specifically set forth in this the fullest extent permitted by law and no implied duties or responsibilities shall be read or implied into this Schedule against the Platform Provider. (b) Nothing in this Schedule excludes or is intended to exclude liability that cannot be lawfully excluded, such as liability for death or injury caused by a party's negligence, and a party's fraud.
12.3. Termination: The Platform Provider may terminate this Schedule in its sole discretion at any time upon notice to the company. For the avoidance of doubt, this right of termination may be exercised without affecting the continuance (if any) of the AFA or any other terms and conditions agreements signed between the company and the Platform Provider. Upon such termination: (i) the Platform Provider will no longer accept Messages or Transactions from the company; (ii) the Platform Provider will only proceed with any outstanding Transactions that the Platform Provider received and accepted prior to the time of termination; (iii) the company shall remain responsible for all liabilities to the Platform Provider in respect of any Transactions that remain due and outstanding at the time of termination; and (iv) the Platform Provider will disable any Logins relating to the company and its Authorized Users. Termination of this Schedule is without prejudice to each Party’s rights which accrued up to the date of termination. The right to terminate this Schedule are not exclusive but shall be in addition to every other remedy or right, including the right to recover damages and seek equitable remedies.
12.4. Underlying transactions: The company agrees that the company's obligations under this Schedule and any Message or Transaction sent by or entered into by it shall not be affected by the invalidity, unenforceability, existence, performance or non-performance of the underlying commercial trade transaction or any related contract or undertaking, nor shall those obligations be subject to claims or defenses of the company in relation to the same, including breach of contract, breach of statutory obligation or equitable remedies.
12.5. Survival: Clauses 2.3, 3, 4, 5, 6, and 7 of this Schedule, and clauses 10, 11, 14 of the AFA, shall continue to apply to and survive the termination of this Schedule.